Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
Contract 45247 (2)
CITY SECRETARY d ,�CONTRACT N0. STATE OF TEXAS COUNTY OF TARRANT TAX ABATEMENT AGREEMENT This TAX ABATEMENT AGREEMENT ("Agreement") is entered into by and between the CITY OF FORT WORTH, TEXAS (the "City"), a home rule municipality organized under the laws of the State of Texas; AT INDUSTRIAL OWNER 3 LLC, a Delaware limited liability company ("AT3"); and ATC LOGISTICS & ELECTRONICS, INC., a Delaware corporation ("Company"). RECITALS A. On June 12, 2012, the City Council adopted Resolution No. 4096-06-2012, stating that the City elects to be eligible to participate in tax abatement and setting forth guidelines and criteria governing tax abatement agreements entered into between the City and various parties, entitled "General Tax Abatement Policy" (the "Policy"), which is incorporated herein by reference and hereby made a part of this Agreement for all purposes. B. The Policy contains appropriate guidelines and criteria governing tax abatement agreements to be entered into by the City as contemplated by Chapter 312 of the Texas Tax Code, as amended (the "Code"). C. On October 2, 2012 the City Council adopted Ordinance No. 20444-10- 2012 (the "Ordinance") establishing Tax Abatement Reinvestment Zone No. 84, City of Fort Worth, Texas and Ordinance No. 20445-10-2012 establishing Tax Abatement Reinvestment Zone No. 85 (the "Zones"). D. Company leases property at 13550 Independence Parkway, which is located within Tax Abatement Reinvestment Zone No. 84, City of Fort Worth, Texas, and 5201 Alliance Gateway, which is located within Tax Abatement Reinvestment Zone No. 85, City of Fort Worth, Texas, both of which are more specifically described in Exhibit "A", attached hereto and hereby made a part of this Agreement for all purposes. These parcels are owned by AT3 (collectively, the "AT3 Parcels"). Company also leases property at 13500 Independence Parkway, which is located within Tax Abatement Reinvestment Zone No. 84, and which is more specifically described in Exhibit "B", attached hereto and hereby made a part of this Agreement for all purposes. This parcel is owned by AT Industrial Owner 4 LLC, a Delaware limited liability company (the "AT4 Parcel"). OFFICIAL RECORD Page 1 Tax Abatement Agreement between CITY SECRETARY City of Fort Worth; AT Industrial Owner 3 LLe ancT oithi: ectr )nics, Inc. rim 14.4 12 31-12 E. Company provides logistics and reverse logistics services from various locations in North America, including approximately 1,000,000 square feet of industrial space collectively on the AT3 Parcels and the AT4 Parcel. Contingent upon receipt of the tax abatement herein, Company intends to expand and modernize these facilities and to install certain taxable business personal property on both the AT3 Parcels and the AT4 Parcel, and subsequently during the Term of this Agreement to install substantially more taxable business personal property on those Parcels, all as more specifically set forth in this Agreement. F. On July 25, 2012 Company submitted an application for tax abatement to the City concerning Company's plans for development of the AT3 Parcels and the AT4 Parcel including construction of the Required Improvements, as defined herein, which application is attached hereto as Exhibit `C" and hereby made a part of this Agreement for all purposes. On September 6, 2012 AT3 submitted also an application for tax abatement to the City relating to Company's plans for development of the AT3 Parcels and the AT4 Parcel, which application is attached hereto as Exhibit `D' and hereby made a part of this Agreement for all purposes. These two applications collectively are referred to herein as the "Application". G. The contemplated use of the AT3 Parcels and the AT4 Parcel and the terms of this Agreement are consistent with encouraging development of the Zones and generating economic development and increased employment opportunities in the City, in accordance with the purposes for creation of the Zones, and are in compliance with the Policy, the Ordinance and other applicable laws, ordinances, rules and regulations. H. The provisions of this Agreement, and the proposed use of the AT3 Parcels and nature of the proposed Required Improvements, as defined herein, satisfy the eligibility criteria for a commercial/industrial tax abatement (business expansion) pursuant to Section 6.2 of the Policy. I. Written notice that the City intends to enter into this Agreement, along with a copy of this Agreement, has been furnished in the manner prescribed by the Code to the presiding officers of the governing bodies of each of the taxing units that have jurisdiction over the AT3 Parcels. L. The City, AT Industrial Owner 4 LLC, and Company have also executed a Tax Abatement Agreement contemporaneously with execution of this Agreement pursuant to which the City will abate a percentage of the City's ad valorem taxes on New Taxable Tangible Personal Property located on the AT4 Parcel in return for construction of a portion of the Required Improvements on the AT4 Parcel (the "AT4 Abatement Agreement"). NOW, THEREFORE in consideration of the mutual benefits and promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: Page 2 Tax Abatement Agreement between City of Fort Worth; AT Industrial Owner 3 LLC; and ATC Logistics & Electronics, Inc. AGREEMENT 1. INCORPORATION OF RECITALS. The City Council has found, and the City and Company hereby agree, that the recitals set forth above are true and correct and form the basis upon which the parties have entered into this Agreement. 2. DEFINITIONS. In addition to terms defined in the body of this Agreement, the following terms shall have the definitions ascribed to them as follows: Abatement means the abatement of a percentage (not to exceed seventy percent (70%) in any year of the Abatement Term or, if Company fails to meet the Phase II Personal Property Commitment, not to exceed fifty-five percent (55%) in each remaining year of the Abatement Term) of the City's ad valorem taxes on New Taxable Tangible Personal Property located on the AT3 Parcels only, calculated in accordance with this Agreement. Abatement Term means the term of ten (10) consecutive years, commencing on January 1 of the second full calendar year following the year in which the Completion Date occurred and expiring on December 31 of the tenth (10th) year thereafter, in which Company will receive the Abatement in accordance with this Agreement. Application has the meaning ascribed to it in Recital F. AT3 Parcels has the meaning ascribed to it in Recital D. AT4 means AT Industrial Owner 4 LLC, a Delaware limited liability company. AT4 Abatement Agreement has the meaning ascribed to it in Recital L AT4 Parcel has the meaning ascribed to it in Recital D. Central City means that area in the corporate limits of the City within Loop 820 (i) consisting of all Community Development Block Grant ("CDBG") eligible census block groups; (ii) all state -designated enterprise zones; and (iii) all census block groups that are contiguous by seventy-five percent (75%) or more of their perimeter to CDBG- eligible block groups or enterprise zones, as well as any CDBG-eligible block in the corporate limits of the City outside Loop 820, as more specifically depicted in the map of Exhibit "E", attached hereto and hereby made a part of this Agreement for all purposes. Page 3 Tax Abatement Agreement between City of Fort Worth; AT Industrial Owner 3 LLC; and ATC Logistics & Electronics, Inc. Central City Emnlovment Commitment has the meaning ascribed to it in Section 4.7. 6.1.6. Central City Emnlovment Percentage has the meaning ascribed to it in Section Central City Resident means an individual whose primary residence is at a location within the Central City. Certificate of Completion has the meaning ascribed to it in Section 5. Code has the meaning ascribed to it in Recital B. Company Affiliate means all entities, incorporated or otherwise, under common control with, controlled by or controlling Company. For purposes of this definition, "control" means fifty percent (50%) or more of the ownership determined by either value or vote. Completion Date means the date as of which all occupiable space within the Required Improvements has received a temporary or permanent certificate of occupancy. Completion Deadline means December 31, 2013. Compliance Auditing Term means the term of ten (10) consecutive years, commencing on January 1 of the first full calendar year following the year in which the Completion Date occurred and expiring on December 31 of the tenth (loth) year thereafter, in which the City will verify and audit Company's comphance with the various commitments set forth in Section 4 that form the basis for calculation of the amount of each annual Abatement percentage hereunder. Construction Costs means actual site development and construction costs, including directly -related contractor fees costs of supplies and materials, engineering fees, architectural and design fees, and permit fees, and specifically excludes any property acquisition costs. Director means the director of the City's Housing and Economic Development Department. Effective Date has the meaning ascribed to it in Section 3 Event of Default means a breach of this Agreement by a party, either by act or omission, as more specifically set forth in Section 7 of this Agreement. Fort Worth Certified M/WBE Company means a minority or woman -owned business that has received certification as either a minority business enterprise (MBE), a Page 4 Tax Abatement Agreement between City of Fort Worth; AT Industrial Owner 3 LLC, and ATC Logistics & Electronics, Inc. woman business enterprise (WBE) or a disadvantaged business enterprise (DBE) by the North Central Texas Regional Certification Agency (NCTRCA) and that has a principal business office located within the corporate limits of the City that performs a commercially useful function and that provides the services for which Company is seeking credit under this Agreement. Fort Worth Company means a business that has a principal office located within the corporate limits of the City that performs a commercially useful function and that provides the services for which Company is seeking credit under this Agreement. Fort Worth Construction Commitment has the meaning ascribed to it in Section 4.3. 6.1.2. Fort Worth Construction Percentage has the meaning ascribed to it in Section Fort Worth Employment Commitment has the meaning ascribed to it in Section 4.6. 6.1.5. Fort Worth Employment Percentage has the meaning ascribed to it in Section Fort Worth Resident means an individual whose principal place of residence is at a location within the corporate limits of the City. Fort Worth Supply and Service Spending Commitment has the meaning ascribed to it in Section 4.8. Fort Worth Supply and Service Percentage has the meaning ascribed to it in Section 6.1.7. Full-time Job means a job provided to one (1) individual by Company on the AT3 Parcels or the AT4 Parcel for at least forty (40) hours per week. Legal Requirements means federal, state and local laws ordinances rules and regulations, including, but not limited to, all provisions of the City's charter and ordinances, as amended. M/WBE Construction Commitment has the meaning ascribed to it in Section M/WBE Construction Percentage has the meaning ascribed to it in Section M/WBE Supply and Service Spending Commitment has the meaning ascribed to it in Section 4.9. 4.4. 6.1.3. Page 5 Tax Abatement Agreement between City of Fort Worth; AT Industrial Owner 3 LLC; and ATC Logistics & Electronics, Inc. M/WBE Supply and Service Percentage has the meaning ascribed to it in Section 6.1.8. New Taxable Tangible Personal Property means any personal property other than inventory or supplies that (i) is subject to ad valorem taxation by the City; (ii) is owned or leased by Company and used by Company for the business purposes outlined in this Agreement, and (iii) was not located in the City prior to the Effective Date of this Agreement. 4.5. Ordinance has the meaning ascribed to it in Recital C. Overall Construction Percentage has the meaning ascribed to it in Section 6.1.1. Overall Employment Commitment has the meaning ascribed to it in Section Overall Employment Percentage has the meaning ascribed to it in Section 6.1.4. Phase I Personal Property Commitment has the meaning ascribed to it in Section 4.1. Phase II Personal Property Commitment has the meaning ascribed to it in Section 4.2. Policy has the meaning ascribed to it in Recital A. Records has the meaning ascribed to it in Section 4.12. Required Improvements means the expansion and modernization of the improvements on both the AT3 Parcels and the AT4 Parcel, as more specifically described in Exhibit "F" (attached hereto and hereby made a part of this Agreement for all purposes) and having an aggregate minimum Construction Cost of One Million Dollars ($1,000,000.00), as verified in the Certificate of Completion issued by the Director in accordance with Section 5 of this Agreement. Supply and Service Expenditures means those local discretionary expenditures made by Company directly for the operation and maintenance of both the AT3 Parcels and the AT4 Parcel and any improvements thereon, excluding utility service costs. Term has the meaning ascribed to it in Section 3 Zone has the meaning ascribed to it in Recital C. Page 6 Tax Abatement Agreement between City of Fort Worth; AT Industrial Owner 3 LLC; and ATC Logistics & Electronics, Inc. 3. TERM. This Agreement shall take effect on the date as of which both the City and Company have executed this Agreement (the Effective Date") and, unless terminated earlier in accordance with its terms and conditions, shall expire simultaneously upon expiration of the Abatement Term (the "Term"). 4. COMPANY'S OBLIGATIONS AND COMMITMENTS. 4.1. Phase I. In accordance with the Lease, AT3 and Company must expend or cause to be expended at least One Million Dollars ($1,000,000.00) in Construction Costs for the Required Improvements by the Completion Date The Completion Date for the Required Improvements must occur on or before the Completion Deadline. In addition, New Taxable Tangible Personal Property having a value of at least Seven Million Dollars ($7,000,000.00) must be in place collectively on the AT3 Parcels and the AT4 Parcel by January 1 of the first full year following the year in which the Completion Date occurred, as determined solely by Tarrant Appraisal District or the appraisal district having jurisdiction over such Parcels at the time and reflected in the certified appraisal roll received by the City from such appraisal district in such year (the "Phase I Personal Property Commitment"). The Phase I Personal Property Commitment is an obligation of Company only, and neither AT3 nor AT4 shall have any responsibility to ensure that the Phase I Personal Property Commitment is met. Notwithstanding anything to the contrary herein, if (i) by the Completion Date AT3 and Company have not expended or caused to be expended at least One Million Dollars ($1,000,000.00) in Construction Costs for the Required Improvements; (ii) the Completion Date for the Required Improvements does not occur by the Completion Deadline; or (iii) the Phase I Personal Property Commitment is not met, an Event of Default shall occur, as set forth in Section 7.2 of this Agreement. 4.2. Phase II. New Taxable Tangible Personal Property having a value of at least Ten Million Five Hundred Thousand Dollars ($10,500,000 00), excluding any New Taxable Tangible Personal Property that was counted for purposes of ascertaining attainment of the Phase I Personal Property Commitment, must be in place collectively on the AT3 Parcels and the AT4 Parcel as of January 1, 2017, as determined solely by Tarrant Appraisal District or the appraisal district having jurisdiction over the Parcels at the time and reflected in the certified appraisal roll received by the City from such appraisal district in such year (the `Phase II Personal Property Commitment' ). The Phase II Personal Property Commitment is an obligation of Company only, and neither AT3 nor AT4 shall have any Page 7 Tax Abatement Agreement between City of Fort Worth; AT Industrial Owner 3 LLC; and ATC Logistics & Electronics, Inc. responsibility to ensure that the Phase II Personal Property Commitment is met. Notwithstanding anything to the contrary herein, if the Phase II Personal Property Commitment is not met, an Event of Default shall not occur but the amount of Abatement granted hereunder for the 2017 tax year and in each year thereafter for the remainder of the Abatement Term shall be reduced in accordance with Section 6.2 of this Agreement. 4.3. Construction Spending Commitment for Fort Worth Companies. By the Completion Date, AT3 and Company shall have expended or caused to be expended with Fort Worth Companies the greater of (i) Three Hundred Fifty Thousand Dollars ($350,000.00) in Construction Costs for the Required Improvements or (ii) at least thirty-five percent (35%) of all Construction Costs for the Required Improvements, regardless of the total amount of such Construction Costs (the ' Fort Worth Construction Commitment"). The Fort Worth Construction Commitment is an obligation of Company only, and neither AT4 nor AT3 shall have any responsibility to ensure that the Fort Worth Construction Commitment is met. 4.4. Construction Spending Commitment for Fort Worth Certified M/WBE Companies. By the Completion Date, AT3 and Company shall have expended or caused to be expended with Fort Worth Certified M/WBE Companies the greater of (i) Two Hundred Fifty Thousand Dollars ($250,000.00) in Construction Costs for the Required Improvements or (ii) at least twenty-five percent (25%) of all Construction Costs for the Required Improvements, regardless of the total amount of such Construction Costs (the "M/WBE Construction Commitment"). Dollars spent with Fort Worth Certified M/WBE Companies for purposes of measuring the M/WBE Construction Commitment shall also be counted for purposes of measuring the Fort Worth Construction Commitment, as set forth in Section 4.3. The M/WBE Construction Commitment is an obligation of Company only and neither AT4 nor AT3 shall have any responsibility to ensure that the M/WBE Construction Commitment is met. 4.5. Annual Overall Employment Commitment. Company will be eligible to receive a percentage of Abatement, as more specifically set forth in Section 6.1.4, to the extent that Company provides and fills a minimum number of Full-time Jobs collectively on the AT3 Parcels and the AT4 Parcel, as follows (the `Overall Employment Commitment' ). The Overall Employment Commitment is an obligation of Company only, and neither AT3 nor AT4 shall have any responsibility to ensure that the Overall Employment Commitment is met. Page 8 Tax Abatement Agreement between City of Fort Worth; AT Industrial Owner 3 LLC; and ATC Logistics & Electronics, Inc. 4.5.1. Between January 1 following Completion Date until December 31, 2015. From January 1 of the first full calendar year following the year in which the Completion Date occurs, and in each year thereafter until December 31, 2015, Company continuously shall provide -and fill at least 1,840 Full-time Jobs collectively on the AT3 Parcels and the AT4 Parcel. 4.5.2. After December 31, 2015. From January 1, 2016 and in each year thereafter for the remainder of the Compliance Auditing Term, Company continuously shall provide and fill at least 2,079 Full-time Jobs collectively on the AT3 Parcels and the AT4 Parcel. 4.6. Annual Employment Commitment for Fort Worth Residents. Company will be eligible to receive a percentage of Abatement, as more specifically set forth in Section 6.1.5, to the extent that Company provides and fills with Fort Worth Residents a minimum number of Full-time Jobs collectively on the AT3 Parcels and the AT4 Parcel, as follows (the 'Fort Worth Employment Commitment"). The Fort Worth Employment Commitment is an obligation of Company only, and neither AT3 nor AT4 shall have any responsibility to ensure that the Fort Worth Employment Commitment is met. 4.6.1. Between January 1 following Completion Date until December 31, 2015. From January 1 of the first full calendar year following the year in which the Completion Date occurs, and in each year thereafter until December 31, 2015, Company continuously shall provide and fill with Fort Worth Residents at least the greater of (i) 644 Full-time Jobs on the AT3 Parcels and the AT4 Parcel or (ii) thirty-five percent (35%) of all Full-time Jobs on the AT3 Parcels and the AT4 Parcel, regardless of the total number of such Full-time Jobs. 4.6.2. After December 31, 2015. From January 1, 2016 and in each year thereafter for the remainder of the Compliance Auditing Term, Company continuously shall provide and fill with Fort Worth Residents at least the greater of (i) 728 Full-time Jobs on the AT3 Parcels and the AT4 Parcel or (ii) thirty-five percent (35%) of all Full-time Jobs on the AT3 Parcels and the AT4 Parcel regardless of the total number of such Full-time Jobs. 4.6.3. Counts Toward Overall Employment Commitment. Page 9 Tax Abatement Agreement between City of Fort Worth; AT Industrial Owner 3 LLC; and ATC Logistics & Electronics, Inc. Full-time Jobs held by Fort Worth Residents shall also count as Full-time Jobs for purposes of measuring the Overall Employment Commitment outlined in Section 4.5. 4.7. Annual Emnlovment Commitment for Central City Residents. Company will be eligible to receive a percentage of Abatement, as more specifically set forth in Section 6.1.6, to the extent that Company provides and fills with Central City Residents a minimum number of Full-time Jobs collectively on the AT3 Parcels and the AT4 Parcel, as follows (the "Central City Employment Commitment"). The Central City Employment Commitment is an obligation of Company only, and neither AT3 nor AT4 shall have any responsibility to ensure that the Central City Employment Commitment is met. 4.7.1. Between January 1 following Completion Date until December 31, 2015. From January 1 of the first full calendar year following the year in which the Completion Date occurs, and in each year thereafter until December 31, 2015, Company continuously shall provide and fill with Central City Residents at least the greater of (i) 552 Full-time Jobs on the AT3 Parcels and the AT4 Parcel or (ii) thirty percent (30%) of all Full- time Jobs on the AT3 Parcels and the AT4 Parcel, regardless of the total number of such Full-time Jobs. 4.7.2. After December 31, 2015. From January 1, 2016 and in each year thereafter for the remainder of the Compliance Auditing Term, Company continuously shall provide and fill with Central City Residents at least the greater of (i) 624 Full-time Jobs on the AT3 Parcels and the AT4 Parcel or (ii) thirty percent (30%) of all Full-time Jobs on the AT3 Parcels and the AT4 Parcel, regardless of the total number of such Full-time Jobs. 4.7.3. Counts Toward Overall and Fort Worth Employment Commitments. Full-time Jobs held by Central City Residents shall also count as Full-time Jobs for purposes of measuring the Overall Employment Commitment outlined in Section 4.5 and the Fort Worth Employment Commitment outlined in Section 4.6. 4.8. Annual Supply and Service Spending Commitment for Fort Worth Companies. Page 10 Tax Abatement Agreement between City of Fort Worth; AT Industrial Owner 3 LLC; and ATC Logistics & Electronics, Inc. Beginning in the first full calendar year following the year in which the Completion Date occurs, and in each year thereafter during the Compliance Auditing Term, Company hereby commits to expend with Fort Worth Companies at least Five Hundred Thousand Dollars ($500,000.00) in Supply and Service Expenditures (the "Fort Worth Supply and Service Spending Commitment"). The Fort Worth Supply and Service Spending Commitment is an obligation of Company only, and neither AT3 nor AT4 shall have any responsibility to ensure that the Fort Worth Supply and Service Spending Commitment is met. 4.9. Annual Supply and Service Spending Commitment for Fort Worth Certified M/WBE Companies. Beginning in the first full calendar year following the year in which the Completion Date occurs, and in each year thereafter during the Compliance Auditing Term, Company hereby commits to expend with Fort Worth Certified M/WBE Companies at least Four Hundred Thousand Dollars ($400,000.00) in Supply and Service Expenditures (the "M/WBE Supply and Service Spending Commitment"). Dollars spent with Fort Worth Certified M/WBE Companies for purposes of measuring the M/WBE Supply and Service Spending Commitment shall also be counted for purposes of measuring the Fort Worth Supply and Service Spending Commitment, as set forth in Section 4 8 The M/WBE Supply and Service Spending Commitment is an obligation of Company only, and neither AT3 nor AT4 shall have any responsibility to ensure that the M/WBE Supply and Service Spending Commitment is met. 4.10. Reports and Filings. 4.10.1. Construction Spending Reports. 4.10.1.1. Quarterly Reports. From the Effective Date until the Completion Date, Company will provide the Director with a quarterly report in a form reasonably acceptable to the City that specifically outlines the then -current aggregate Construction Costs expended by and on behalf of Company for the Required Improvements, together with the then -current aggregate Construction Costs for the Required Improvements expended by and on behalf of Company with Fort Worth Companies and with Fort Worth Certified M/WBE Companies. Company agrees to meet with the City's M/WBE Office as reasonably necessary for assistance in meeting or exceeding M/WBE Construction Commitment and to address any related concerns that the City may have. 4.10.1.2. Final Construction Reports. Page 11 Tax Abatement Agreement between City of Fort Worth; AT Industrial Owner 3 LLC; and ATC Logistics & Electronics, Inc. Within sixty (60) calendar days following the Completion Date, in order for the City to assess whether Company expended or caused to be expended at least One Million Dollars ($1,000,000.00) in Construction Costs for the Required Improvements, and the extent to which Company met the Fort Worth Construction Commitment and the M/WBE Construction Commitment Company will provide the Director with a report in a form reasonably acceptable to the City that specifically outlines (i) the total Construction Costs expended by and on behalf of Company for the Required Improvements, (ii) the total Construction Costs expended with Fort Worth Companies by and on behalf of Company for the Required Improvements, and (iii) the total Construction Costs expended with Fort Worth Certified M/WBE Companies by and on behalf of Company for the Required Improvements, together with supporting invoices and other documents necessary to demonstrate that such amounts were actually paid by Company, including without limitation, final lien waivers signed by Company's general contractor. 4.10.2. Annual Employment Report. On or before February 1 of the second full calendar year following the year in which the Completion Date occurs, and of each year thereafter for the remainder of the Compliance Auditing Term in order for the City to assess the degree to which Company met in the previous year the Overall Employment Commitment, the Fort Worth Employment Commitment and the Central City Employment Commitment, Company shall provide the Director with a report in a form reasonably acceptable to the City that sets forth the total number of individuals, the total number of Fort Worth Residents, and the total number of Central City Residents who held Full-time Jobs on the AT3 Parcels and the AT4 Parcel, each as of December 1 (or such other date requested by Company and reasonably acceptable to the City) of the previous calendar year, together with reasonable supporting documentation. 4.10.3. Annual SunD1v and Service Spending Report. On or before February 1 of the second full calendar year following the year in which the Completion Date occurs, and of each year thereafter for the remainder of the Compliance Auditing Term, in order for the City to assess the degree to which Company met the Fort Worth Supply and Service Spending Commitment and the M/WBE Supply and Service Spending Commitment in the previous calendar year Company shall provide the City with a report in a form reasonably acceptable to the City that sets forth the aggregate Supply and Service Expenditures made during Page 12 Tax Abatement Agreement between City of Fort Worth; AT Industrial Owner 3 LLC; and ATC Logistics & Electronics, Inc. such year with Fort Worth Companies and Fort Worth Certified M/WBE Companies, together with reasonable supporting documentation. 4.10.4. General. Company will supply any additional information reasonably requested by the City that is pertinent to the City's evaluation of compliance with each of the terms and conditions of this Agreement. 4.11. Inspections. At any time during Company's normal business hours throughout the Term and following reasonable notice to Company and AT3 and AT4, as applicable, the City shall have the right to inspect and evaluate the AT3 Parcels and the AT4 Parcel, and any improvements thereon, and Company will provide full access to the same, in order for the City to monitor compliance with the terms and conditions of this Agreement. Company will cooperate fully with the City during any such inspection and evaluation. Notwithstanding the foregoing, Company shall have the right to require that any representative of the City be escorted by a Company representative or security personnel during any such inspection and evaluation. 4.12. Audits. The City will have the right throughout the Term to audit the financial and business records of Company that relate to the Required Improvements and the AT3 Parcels and the AT4 Parcel and any other documents of the Company necessary to evaluate Company's compliance with this Agreement or with the commitments set forth in this Agreement, including, but not limited to construction documents and invoices (collectively ' Records"). Company shall make all Records available to the City on the AT3 Parcels, the AT4 Parcel or at another location in the City acceptable to both parties following reasonable advance notice by the City and shall otherwise cooperate fully with the City during any audit. 4.13. Use of AT3 Parcels. The AT3 Parcels and any improvements thereon, including, but not limited to, the Required Improvements, must be used at all times during the Term of this Agreement for Company's lawful business operations as set forth in this Agreement, and otherwise in a manner that is consistent with the general purposes of encouraging development or redevelopment of the Zones. 4.14. Abatement Application Fee. Page 13 Tax Abatement Agreement between City of Fort Worth; AT Industrial Owner 3 LLC; and ATC Logistics & Electronics, Inc. the City acknowledges receipt in accordance with the Policy of the required Application fee of Five Thousand Dollars ($5,000.00) Of such amount, Two Thousand Dollars ($2,000.00) is nonrefundable and shall be used by the City for the purposes set forth in the Policy. If construction work on the Required Improvements begins within one (1) year from the date of the Application, the remaining Three Thousand Dollars ($3,000.00) of such fee shall be credited to AT3's or Company's benefit, as the case may be, against any permit, impact, inspection or other lawful fee required by the City in connection with the Required Improvements. If construction work for the Required Improvements does not begin within one (1) year from the date of the Application, Company will not receive a credit or refund of any portion of the fee. 5. CERTIFICATE OF COMPLETION. Within ninety (90) calendar days following receipt by the City of the final construction spending report for the Required Improvements submitted in accordance with Section 4.10.1.2 and assessment by the City of the information contained therein pursuant to Sections 4.11 and 4.12, if the City is able to verify that AT3 and Company expended or caused to be expended at least One Million Dollars ($1,000,000.00) in Construction Costs for the Required Improvements by the Completion Date and that the Completion Date occurred on or before Completion Deadline the Director will issue AT3 and Company a certificate stating the aggregate amount of Construction Costs expended for the Required Improvements and the amount of such Construction Costs expended specifically with Fort Worth Companies and Fort Worth Certified M/WBE Companies (the "Certificate of Completion"). The Certificate of Completion will serve as the basis for determining the extent to which the Fort Worth Construction Commitment and the M/WBE Construction Commitment were met. 6. TAX ABATEMENT. 6.1. Phase I. Subject to the terms and conditions of this Agreement provided that (i) AT3 and Company expended or caused to be expended at least One Million Dollars ($1,000,000.00) in Construction Costs for the Required Improvements by the Completion Date, as confirmed in the Certificate of Completion issued by the Director in accordance with Section 5 (ii) the Completion Date occurred on or before the Completion Deadline as confirmed in the Certificate of Completion issued for by the Director in accordance with Section 5; and (iii) New Taxable Tangible Personal Property having a value of at least Seven Million Dollars ($7,000,000.00) was in place in the aggregate on the AT3 Parcels and the AT4 Parcel by January 1 of the year following the year in which the Completion Date occurred, as determined solely by the appraisal district having jurisdiction over such Parcels at that time and reflected in the certified appraisal roll received by Page 14 Tax Abatement Agreement between City of Fort Worth; AT Industrial Owner 3 LLC; and ATC Logistics & Electronics, Inc. the City from such appraisal district in such year, Company will be entitled to receive an Abatement in the first year of the Abatement Term and in each year thereafter for the remainder of the Abatement Term. The amount of each Abatement that Company is entitled to receive during such years will be a percentage of the City's ad valorem taxes on New Taxable Tangible Personal Property located on the AT3 Parcels only, which percentage shall equal the sum of the Overall Construction Percentage, the Fort Worth Construction Percentage, the M/WBE Construction Percentage, the Overall Employment Percentage the Fort Worth Employment Percentage, the Central City Employment Percentage, the Fort Worth Supply and Service Percentage and the M/WBE Supply and Service Percentage, as defined in Sections 6.1.1 through 6.1.8 (not to exceed seventy percent (70%) and, if the Phase II Personal Property Commitment is not met, subject to further reduction in the 2016 tax year and each year thereafter for the remainder of the Abatement Term, as set forth in Section 6.2), as follows: 6.1.1. Completion of Required Improvements (15%). Company shall be entitled to receive a percentage of the Abatement equal to fifteen percent (15%) (the "Overall Construction Percentage") on account • of all requirements having been met in accordance with Section 4.1 for completion of the Required Improvements and on account of the Phase I Personal Property Commitment having been met. 6.1.2. Fort Worth Construction Cost Spending (Up to 5%). A percentage of the Abatement will be based on the extent to which the Fort Worth Construction Commitment, as outlined in Section 4.3, was met (the "Fort Worth Construction Percentage"). The Fort Worth Construction Percentage shall equal the product of five percent (5%) multiplied by the percentage by which the Fort Worth Construction Commitment was met, which will be calculated by dividing the actual Construction Costs expended for the Required Improvements by the Completion Date with Fort Worth Companies by the number of dollars comprising the Fort Worth Construction Commitment, as determined in accordance with Section 4 3 For example, if the Fort Worth Construction Commitment is $350,000 00 and only $245,000.00 in Construction Costs were expended with Fort Worth Companies by the Completion Date, the Fort Worth Construction Percentage would be 3.5% instead of 5% (or .05 x [$350,000/$245,000], or .05 x .70, or .35). If the Fort Worth Construction Commitment was met or exceeded, the Fort Worth Construction Percentage will be five percent (5%). 6.1.3. Fort Worth M/WBE Construction Cost Spending (Up to 5%). Page 15 Tax Abatement Agreement between City of Fort Worth; AT Industrial Owner 3 LLC; and ATC Logistics & Electronics, Inc. A percentage of the Abatement will be based on the extent to which the M/WBE Construction Commitment, as outlined in Section 4.4 was met (the `M/WBE Construction Percentage"). The M/WBE Construction Percentage shall equal the product of five percent (5%) multiplied by the percentage by which the M/WBE Construction Commitment was met, which will be calculated by dividing the actual Construction Costs expended for the Required Improvements by the Completion Date with Fort Worth Certified M/WBE Companies by the number of dollars comprising the M/WBE Construction Commitment, as determined in accordance with Section 4.4. If the M/WBE Construction Commitment was met or exceeded, the M/WBE Construction Percentage will be five percent (5%). 6.1.4. Overall Employment (Up to 15%). A percentage of the Abatement will be based on the extent to which the Overall Employment Commitment was met in a given year, as outlined in Section 4.5, (the "Overall Employment Percentage"). The Overall Employment Percentage for a given year shall equal the product of fifteen percent (15%) multiplied by the percentage by which the Overall Employment Commitment was met in the previous calendar year, which will be calculated by dividing the actual number of Full-time Jobs provided collectively on the AT3 Parcels and the AT4 Parcel in the previous year by the number of Full-time Jobs constituting the Overall Employment Commitment in such previous year, as set forth in Section 4.5. For example, the Overall Employment Commitment for the first full calendar year following the Completion Date will be 1 840 Full-time Jobs. If in that year only 1,380 Full-time Jobs were provided collectively on the AT3 Parcels and the AT4 Parcel, the Overall Employment Percentage for the following year would be 11.25% instead of 15% (or .15 x [1,380/1,840)), or .15 x .75, or .1125. If the Overall Employment Commitment is met or exceeded in a given year, the Overall Employment Percentage for the following year will be fifteen percent (15%). 6.1.5. Fort Worth Employment (Up to 10%). A percentage of the Abatement will be based on the extent to which the Fort Worth Employment Commitment was met in a given year, as outlined in Section 4.6 (the "Fort Worth Employment Percentage"). The Fort Worth Employment Percentage for a given year shall equal the product of ten percent (10%) multiplied by the percentage by which the Fort Worth Employment Commitment was met in the previous calendar year, which will be calculated by dividing the actual number of Full-time Jobs provided on the AT3 Parcels and the AT4 Parcel to Fort Worth Residents in the previous year by the number of Full-time Jobs constituting the Fort Worth Employment Commitment in that year, as set Page 16 Tax Abatement Agreement between City of Fort Worth; AT Industrial Owner 3 LLC; and ATC Logistics & Electronics, Inc. forth in Section 4.6. For example, if Company provides and fills 2,000 Full-time Jobs collectively on the AT3 Parcels and the AT4 Parcel in the first full calendar year following the Completion Date the Fort Worth Employment Commitment for that year will be 700 Full-time Jobs (35% of 2,000 Full-time Jobs). If in that year only 595 Full-time Jobs on the AT3 Parcels and the AT4 Parcel were provided to Fort Worth Residents, the Fort Worth Employment Percentage for the following year would be 8.5% instead of 10% (or .10 x [595/700]), or .10 x 85, or .085. If the Fort Worth Employment Commitment is met or exceeded in a given year, the Fort Worth Employment Percentage for the following year will be ten percent (10%). 6.1.6. Central City Employment (Un to 10%). A percentage of the Abatement will be based on the extent to which the Central City Employment Commitment was met in a given year, as outlined in Section 4 7 (the "Fort Worth Employment Percentage"). The Central City Employment Percentage for a given year shall equal the product of ten percent (10%) multiplied by the percentage by which the Central City Employment Commitment was met in the previous calendar year, which will be calculated by dividing the actual number of Full-time Jobs provided on the AT3 Parcels and the AT4 Parcel to Central City Residents in the previous year by the number of Full-time Jobs constituting the Central City Employment Commitment in that year, as set forth in Section 4.7. If the Central City Employment Commitment is met or exceeded in a given year, the Central City Employment Percentage for the following year will be ten percent (10%). 6.1.7. Fort Worth Supply and Service Spending (Un to 5%). A percentage of the Abatement will be based on the extent to which the Fort Worth Supply and Service Spending Commitment, as outlined in Section 4.8, was met (the "Fort Worth Supply and Service Percentage"). The Fort Worth Supply and Service Percentage for a given year shall equal the product of five percent (5%) multiplied by the percentage by which the Fort Worth Supply and Service Spending Commitment was met in the previous calendar year, which will be calculated by dividing the actual Supply and Service Expenditures made in the previous calendar year with Fort Worth Companies by the Fort Worth Supply and Service Spending Commitment for that year. For example, the Fort Worth Supply and Service Spending Commitment for each year is $500,000.00. If only $400,000.00 in Supply and Service Expenditures were made with Fort Worth Companies in a previous calendar year, the Fort Worth Supply and Service Percentage for the following year would be 4% instead of 5% (or .05 x [$400,000/$500,000], or .05 x .80, or .04) If the Fort Worth Supply and Spending Commitment is met or exceeded in Page 17 Tax Abatement Agreement between City of Fort Worth; AT Industrial Owner 3 LLC; and ATC Logistics & Electronics, Inc. any given year, the Fort Worth Supply and Service Percentage for the following year will be five percent (5%). 6.1.8. Fort Worth M/WBE Supply and Service Spending (UP to 5%1. A percentage of the Abatement will be based on the extent to which the M/WBE Supply and Service Spending Commitment, as outlined in Section 4 9, was met (the "M/WBE Supply and Service Percentage"). The M/WBE Supply and Service Percentage for a given year shall equal the product of five percent (5%) multiplied by the percentage by which the M/WBE Supply and Service Spending Commitment was met in the previous year which will be calculated by dividing the actual Supply and Service Expenditures made in the previous calendar year with Fort Worth Certified M/WBE Companies by the M/WBE Supply and Service Spending Commitment for that year. If the M/WBE Supply and Spending Commitment is met or exceeded in any given year, the M/WBE Supply and Service Percentage for the following year will be five percent (5%). 6.2. Reduction of Future Abatements for Failure to Meet Phase II Personal Property Commitment. Notwithstanding anything to the contrary herein, if the Phase II Personal Property Commitment is not met, the percentage of Abatement for the 2016 tax year and each year thereafter for the remainder of the Abatement Term shall be calculated in accordance with Section 6.1 and then reduced by fifteen (15) percentage points, meaning that the maximum Abatement In any such years will be fifty-five percent (55%) instead of seventy percent (70%). For example, if the Phase II Personal Property Commitment is not met and the Abatement percentage applicable for the 2016 tax year, calculated in accordance with Section 6.1, is, by way of example only, sixty-five percent (65%), such percentage shall then be reduced by fifteen (15) percentage points, so that the percentage of Abatement available for that year is actually only fifty percent (50%). 6.3. No Offsets. A deficiency in attainment of one commitment may not be offset by the exceeding attainment in another commitment. For example, if Company failed to meet the M/WBE Construction Commitment by $5,000.00, but exceeded the Fort Worth Construction Commitment by $5,000.00, the percentage of Abatement available hereunder would still be reduced in accordance with Section 6.1.3 on account of the failure to meet the M/WBE Construction Commitment. 6.4. Abatement Limitations. In accordance with Section 11.5 of the Policy and notwithstanding anything to the contrary herein, Company's aggregate Abatement under this Page 18 Tax Abatement Agreement between City of Fort Worth; AT Industrial Owner 3 LLC; and ATC Logistics & Electronics, Inc. Agreement and the AT4 Abatement Agreement in any given year of the Abatement Term cannot be based on the value of New Taxable Tangible Personal Property located collectively on the AT3 Parcels and the AT4 Parcel in excess of Twenty -Six Million Two Hundred Fifty Thousand Dollars ($26,250,000.00) over the aggregate value of such New Taxable Tangible Personal Property as of January 1, 2012. In other words, in any year in which the taxable value of New Taxable Tangible Personal Property located collectively on the AT3 Parcels and the AT4 Parcel exceeds (i) the aggregate value of New Taxable Tangible Personal Property located collectively on the AT3 Parcels and the AT4 Parcel as of January 1, 2012 plus (ii) $26,250,000.00, Company's collective Abatement for that tax year under both this Agreement and the AT4 Abatement Agreement shall be capped and calculated, in an equitable manner agreed to by both the City and Company, as if the increase in the value of such New Taxable Tangible Personal Property since January 1, 2012 had only been $26,250,000.00. For example, and as an example only, if in a given year of the Abatement Term the value of New Taxable Tangible Personal Property located collectively on the AT3 Parcels and the AT4 Parcel is $30,000,000.00 over its value as of January 1, 2012, Company would receive a maximum aggregate Abatement under both this Agreement and the AT4 Abatement Agreement of seventy percent (70%) (or if the Phase II Personal Property Commitment is not met of fifty-five percent (55%)) of $26,250 000 00 in valuation for that year and would pay full taxes on the $3,750,000.00 difference over the cap as applied to both Agreements pursuant to an equitable calculation agreed to by both the City and Company. 7. DEFAULT, TERMINATION AND FAILURE BY COMPANY TO MEET VARIOUS DEADLINES AND COMMITMENTS. 7.1. Failure to Meet Construction Cost Spending, Employment, Supply and Service Spending Commitments or Phase II Personal Property Commitment. If the Fort Worth Construction Commitment, the M/WBE Construction Commitment, the Overall Employment Commitment, the Fort Worth Employment Commitment, the Central City Employment Commitment, the Fort Worth Supply and Service Spending Commitment, or the M/WBE Supply and Service Spending Commitment are not met in any year in which such Commitments apply, or if the Phase II Personal Property Commitment is not met, such event shall not constitute an Event of Default hereunder or provide the City with the right to terminate this Agreement, but, rather, shall only cause the percentage or amount of Abatement available to Company pursuant to this Agreement to be reduced in accordance with this Agreement. 7.2. Failure to Complete Phase I. Page 19 Tax Abatement Agreement between City of Fort Worth; AT Industrial Owner 3 LLC; and ATC Logistics & Electronics, Inc. Notwithstanding anything to the contrary herein, if (i) AT3 and Company failed to expend or cause to be expended at least One Million Dollars ($1,000,000.00) in Construction Costs for the Required Improvements by the Completion Date (ii) the Completion Date did not occur on or before the Completion Deadline; or (iii) New Taxable Tangible Personal Property having a value of at least Seven Million Dollars ($7,000,000.00) was not in place collectively on the AT3 Parcels and the AT4 Parcel by January 1 of the first full year following the year in which the Completion Date occurred, as determined solely by Tarrant Appraisal District or the appraisal district having jurisdiction over those Parcels at that time and reflected in the certified appraisal roll received by the City from such appraisal district in such year, an Event of Default shall occur and the City shall have the right to terminate this Agreement, effective immediately, by providing written notice to Company and AT3 or AT4, as applicable, without further obligation to Company hereunder. 7.3. Termination of AT4 Abatement Agreement. This Agreement shall terminate automatically upon the effectiveness of any lawful termination of the AT4 Abatement Agreement. 7.4. Knowing Employment of Undocumented Workers. Company acknowledges that effective September 1, 2007, the City is required to comply with Chapter 2264 of the Texas Government Code, enacted by House Bill 1196 (80th Texas Legislature), which relates to restrictions on the use of certain public subsidies. Company hereby certifies that Company, and any branches, divisions, or departments of Company, does not and will not knowingly employ an undocumented worker, as that term is defined by Section 2264.001(4) of the Texas Government Code. In the event that Company, or any branch, division, or department of Company, is convicted of a violation under 8 U.S.C. Section 1324a(fl (relating to federal criminal penalties and injunctions for a pattern or practice of employing unauthorized aliens): • if such conviction occurs during the Term of this Agreement, this Agreement shall terminate contemporaneously upon such conviction (subject to any appellate rights that may lawfully be available to and exercised by Company) and Company shall repay, within one hundred twenty (120) calendar days following receipt of written demand from the City, the aggregate amount of Abatement received by Company hereunder, if any, plus Simple Interest at a rate of four percent (4%) per annum based on the amount of Abatement received in each previous year as of December 31 of the tax year for which the Abatement was received; or • if such conviction occurs after expiration or termination of this Agreement, subject to any appellate rights that may lawfully be available Page 20 Tax Abatement Agreement between City of Fort Worth; AT Industrial Owner 3 LLC; and ATC Logistics & Electronics, Inc. to and exercised by Company, Company shall repay, within one hundred twenty (120) calendar days following receipt of written demand from the City, the aggregate amount of Abatement received by Company hereunder, if any, plus Simple Interest at a rate of four percent (4%) per annum based on the amount of Abatement received in each previous year as of December 31 of the tax year for which the Abatement was receives For the purposes of this Section 7.4, "Simple Interest" is defined as a rate of interest applied only to an original value, in this case the aggregate amount of Abatement This rate of interest can be applied each year, but will only apply to the aggregate amount of Abatement and is not applied to interest calculated For example, if the aggregate amount of Abatement is $10,000 and it is required to be paid back with four percent (4%) interest five years later, the total amount would be $10 000 + [5 x ($10,000 x 0.04)], which is $12,000. This Section 7.4 does not apply to convictions of any subsidiary or affiliate entity of Company, by any franchisees of Company, or by a person or entity with whom Company contracts. Notwithstanding anything to the contrary herein, this Section 7.4 does not apply to either AT3 or AT4 and shall survive the expiration or termination of this Agreement. 7.5. Failure to Pay Taxes: Non -Compliance with Legal Requirements; General Breach. An Event of Default shall occur if any ad valorem taxes owed to the City by Company or a Company Affiliate become delinquent and Company or the Company Affiliate, as the case may be, does not timely and properly follow the legal procedures for protest and/or contest of any such ad valorem taxes, or Company or a Company Affiliate is in violation of any material Legal Requirement due to any act or omission connected with Company's or a Company Affiliate's operations on the AT3 Parcels. In addition to Sections 7.2, 7.3 and 7.4, an Event of Default under this Agreement shall occur if either party breaches any term or condition of this Agreement, in which case the non -defaulting party shall provide the defaulting party with written notice specifying the nature of the Default. Subject to 'Sections 7.2, 7.3 and 7.4 in the event that any Default hereunder remains uncured after thirty (30) calendar days following receipt of such written notice (or, if the defaulting party has diligently and continuously attempted to cure following receipt of such written notice but reasonably requires more than thirty (30) calendar days to cure, then such additional amount of time as is reasonably necessary to effect cure, as determined by both parties mutually and in good faith), the non -defaulting party shall have the right to terminate this Agreement, effective immediately by providing written notice to the defaulting party 7.6. Liquidated Damages. Page 21 Tax Abatement Agreement between City of Fort Worth; AT Industrial Owner 3 LLC; and ATC Logistics & Electronics, Inc. Company acknowledges and agrees that termination of this Agreement due to an Event of Default by Company will (i) harm the City's economic development and redevelopment efforts on the AT3 Parcels and in the vicinity of the AT3 Parcels (ii) require unplanned and expensive additional administrative oversight and involvement by the City; and (iii) be detrimental to the City's general economic development programs, both in the eyes of the general public and by other business entities and corporate relocation professionals, and Company agrees that the exact amounts of actual damages sustained by the City therefrom will be difficult or impossible to ascertain. Therefore upon termination of this Agreement for any Event of Default and as authorized by Section 312.205(b)(6) of the Code, Company shall pay the City, as liquidated damages, all taxes that were abated in accordance with this Agreement for each year in which an Event of Default existed and which otherwise would have been paid to the City in the absence of this Agreement. The City and Company agree that this amount is a reasonable approximation of actual damages that the City will incur as a result of an uncured Event of Default and that this Section 7.6 is intended to provide the City with compensation for actual damages and is not a penalty. This amount may be recovered by the City through adjustments made to Company's business personal property tax appraisal by the appraisal district that has jurisdiction over the AT3 Parcels and the AT4 Parcel and over any taxable tangible personal property located thereon. Otherwise, this amount shall be due, owing and paid by Company to the City within sixty (60) days following the effective date of termination of this Agreement. In the event that all or any portion of this amount is not paid to the City within sixty (60) days following the effective date of termination of this Agreement, Company shall also be liable for all penalties and interest on any outstanding amount at the statutory rate for delinquent taxes, as determined by the Code at the time of the payment of such penalties and interest (currently, Section 33.01 of the Code). 8. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Company shall operate as an independent contractor in each and every respect hereunder and not as an agent, representative or employee of the City. Company shall have the exclusive right to control all details and day-to-day operations relative to the AT3 Parcels and any improvements thereon and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors, subcontractors, licensees and invitees. Company acknowledges that the doctrine of respondeat superior will not apply as between the City and Company, its officers, agents, servants, employees, contractors, subcontractors licensees, and invitees. Company further agrees that nothing in this Agreement will be construed as the creation of a partnership or joint enterprise between the City and Company. 9. INDEMNIFICATION. Page 22 Tax Abatement Agreement between City of Fort Worth; AT Industrial Owner 3 LLC; and ATC Logistics & Electronics, Inc. COMPANY, AT NO COST TO THE CITY, AT3 OR AT4, AGREES TO DEFEND, INDEMNIFY AND HOLD THE CITY, AT3 AND AT4 AND THEIR RESPECTIVE OFFICERS, AGENTS SERVANTS AND EMPLOYEES, HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO COMPANY'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCLUDING DEATH, THAT MAY RELATE TO, ARISE OUT OF OR BE OCCASIONED BY (i) COMPANY'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (ii) ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF COMPANY, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY) OR SUBCONTRACTORS, RELATED TO THE REQUIRED IMPROVEMENTS; THE AT3 PARCELS AND THE AT 4 PARCEL AND ANY OPERATIONS AND ACTIVITIES THEREON; OR THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT OTHERWISE. THIS SECTION SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT. 10. NOTICES. All written notices called for or required by this Agreement shall be addressed to the following, or such other party or address as either party designates in writing, by certified mail, postage prepaid, or by hand delivery: City: City of Fort Worth Attn: City Manager 1000 Throckmorton Fort Worth, TX 76102 with copies to: the City Attorney and Housing/Economic Development Dept. Director at the same address AT3 OR AT4: AT Industrial Owner 3 LLC AT Industrial Owner 4 LLC c/o Hillwood Alliance Services, LLC 13 600 Heritage Parkway, Suite 200 Fort Worth, TX 76177 Company: ATC Logistics;& Electropics, Inc. v Attn: , �Lt'o!j)&»ti 3o) 4Thaj,a6�z/eww ( 1 77/ Page 23 Tax Abatement Agreement between City of Fort Worth; AT Industrial Owner 3 LLC; and ATC Logistics & Electronics, Inc. OFFIMAL RECORD CITY SECRETARY FT. WORTH, TX Attention: Property Manager with copies to: AT Industrial Owner 3 LLC AT Industrial Owner 4 LLC c/o JPMorgan Asset Management, LLC Global Real Assets NY1-K150 270 Park Avenue, 7th Floor New York, NY 10017 Attention: Dan Mlnkoff 12. EFFECT OF SALE OF AT3 PARCEL AND/OR REOUIRED IMPROVEMENTS; ASSIGNMENT AND SUCCESSORS. AT3 may assign this Agreement without the consent of the City Council, provided that AT3 shall give written notice to the City of the name and contact information for AT3's assignee or successor in interest. Company may assign this Agreement and all or any of the benefits provided hereunder to a Company Affiliate that leases that AT3 Parcels and owns or leases any New Taxable Tangible Personal Property only if (i) prior to or contemporaneously with the effectiveness of such assignment, Company provides the City with written notice of such assignment, which notice shall include the name of the Company Affiliate and a contact name, address and telephone number for the Company Affiliate, and (ii) the Company Affiliate agrees in writing to assume all terms and conditions of Company under this Agreement. Otherwise, Company may not assign, transfer or otherwise convey any of its rights or obligations under this Agreement to any other person or entity without the prior consent of the City Council, which consent shall not be unreasonably withheld, conditioned on (i) the proposed assignee or successor leases or agrees to lease the AT3 Parcels and owns or leases any New Taxable Tangible Personal Property (ii) the prior approval of the assignee or successor and a finding by the City Council that the proposed assignee or successor is financially capable of meeting the terms and conditions of this Agreement; and (iii) prior execution by the proposed assignee or successor of a written agreement with the City under which the proposed assignee or successor agrees to assume and be bound by all covenants and obligations of Company under this Agreement. Any attempted assignment without the City Council's prior consent shall constitute an Event of Default under this Agreement. Any lawful assignee or successor in interest of Company of all rights under this Agreement shall be deemed "Company" for all purposes under this Agreement. 13. COMPLIANCE WITH LAWS, ORDINANCES, RULES AND REGULATIONS. Page 24 Tax Abatement Agreement between City of Fort Worth; AT Industrial Owner 3 LLC; and ATC Logistics & Electronics, Inc. This Agreement will be subject to all applicable Legal Requirements. 14. GOVERNMENTAL POWERS. It is understood that by execution of this Agreement, the City does not waive or surrender any of it governmental powers or immunities. 15. SEVERABILITY. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 16. NO WAIVER. The failure of either party to insist upon the performance of any term or provision of this Agreement or to exercise any right granted hereunder shall not constitute a waiver of that party's right to insist upon appropriate performance or to assert any such right on any future occasion. 17. VENUE AND JURISDICTION. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas — Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. 18. NO THIRD PARTY RIGHTS. The provisions and conditions of this Agreement are solely for the benefit of the City, Company, and AT3 and AT4 and its successors and assigns, and any lawful assign or successor of Company, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 19. INTERPRETATION. In the event of any dispute over the meaning or application of any provision of this Agreement, this Agreement shall be interpreted fairly and reasonably, and neither more strongly for or against any party, regardless of the actual drafter of this Agreement. Page 25 Tax Abatement Agreement between City of Fort Worth; AT Industrial Owner 3 LLC; and ATC Logistics & Electronics, Inc. In the event of any conflict between the body of this Agreement and the Application, the body of this Agreement shall control. 20. CAPTIONS. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 21. ENTIRETY OF AGREEMENT. This Agreement, including any exhibits attached hereto and any documents incorporated herein by reference, contains the entire understanding and agreement between the City, AT3 and Company as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. Notwithstanding anything to the contrary herein, this Agreement shall not be amended unless executed in writing by all parties and approved by the City Council of the City in an open meeting held in accordance with Chapter 551 of the Texas Government Code. 22. COUNTERPARTS. This Agreement may be executed in multiple counterparts, each of which shall be considered an original, but all of which shall constitute one instrument 23. BONDHOLDER RIGHTS. The Required Improvements will not be financed by tax increment bonds. This Agreement is subject to the rights of holders of outstanding bonds of the City. 24. CONFLICTS OF INTEREST. Neither the AT3 Parcels nor any improvements thereon are owned or leased by any member of the City Council, any member of the City Plan or Zoning Commission or any member of the governing body of any taxing unit with jurisdiction in the Zone. 25. OBLIGATIONS AND COMMITMENTS. With respect to all references in this Agreement to AT4 or AT3 and Company expending or causing to be expended certain funds, such obligation shall be satisfied by either Company and/or AT4 or AT3, as applicable, expending or causing to be expended such funds, in the aggregate (e.g., for purposes of Section 4.1, either AT4 or Company must expend or cause to be expended, in the aggregate, at least One Million Dollars Page 26 Tax Abatement Agreement between City of Fort Worth; AT Industrial Owner 3 LLC; and ATC Logistics & Electronics, Inc. ($1,000,000.00) in Construction Costs for the Required Improvements). Additionally, with respect to all references in this Agreement to employment commitments on the AT4 Parcel and AT3 Parcels, such obligation shall be satisfied by the Company satisfying such commitments as to either the AT4 Parcel or AT3 Parcels or any combination of the foregoing (e.g., for purposes of Section 4.6.1, the Company shall have satisfied the Fort Worth Employment Commitment by providing 644 Full-time Jobs on any combination of the AT4 Parcel and AT3 Parcels). 26. FORCE MAJEURE. Whenever a period of time is herein prescribed for action to be taken by any party hereto, such party shall not be liable or responsible for, and there shall be excluded from the computation of any such period of time, any delays due to strikes, riots, acts of God, shortages of labor or materials, war, terrorist acts or activities, governmental laws regulations, or restrictions, or any other causes of any kind whatsoever which are beyond the control of such party. 27. NO LIABILITY. AT3 and AT4 are consenting to the provisions of this Agreement as an accommodation to, and at the request of the Company. Accordingly notwithstanding anything to the contrary contained herein, in no event shall AT3 or AT4 be responsible for any damages, clawbacks, penalties, interest or increase in ad valorem taxes as a result of any default under this Agreement. EXECUTED as of the last date indicated below: [SIGNATURES IMMEDIATELY FOLLOW ON NEXT THREE (3) PAGES] Page 27 Tax Abatement Agreement between City of Fort Worth; AT Industrial Owner 3 LLC; and ATC Logistics & Electronics, Inc. CITY OF FORT WORTH: By: ‘.---7-7411.40s44 Fernando Costa Assistant City Manager Date: /Z/Z8//Z APPROVED AS TO FORM AND LEGALITY: By: fer Ciet Peter Vaky Deputy City Attorney M&C: C-25913 10-09-12 STATE OF TEXAS COUNTY OF TARRANT § I[Joy: 9 Writ Jo Kayser, City S #007? Iiiii:(1t) ozir it et voon°°°00©„^ 0`r`',i ! <25 o�� 0 o o 00000aa'! t-.4 r-% c BEFORE ME, the undersigned authority, on this day personally appeared Fernando Costa, Assistant City Manager of the CITY OF FORT WORTH, a municipal corporation organized under the laws of the State of Texas, known to me to be the person and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that the same was the act of the CITY OF FORT WORTH, that he was duly authorized to perform the same by appropriate resolution of the City Council of the City of Fort Worth and that he executed the same as the act of the CITY OF FORT WORTH for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this 'r' _` day of tin LW , 2012. Notary Public in and for the State of Texas (�'Vb/1/A_ b lnieks Notary's Printed Name `. a •.o e '-.3 7. • • • •, ' Y wts s i111 111(1 Page 28 Tax Abatement Agreement between City of Fort Worth; AT Industrial Owner 3 LLC; and ATC Logistics & Electronics, Inc. J 0 EVONIA DANIELS MY COMMISSION EXPIRES July 10, 2013 y j Vil(-)5020 l: ,)\' r;. 1L`M 1( AT INDUSTRIAL OWNER 3 LLC, a Delaware limited liability company By: AT Industrial Owner Acquisition LLC, a Delaware limited liability company, its sole member By: Commingled Pension Trust Fund (Strategic Property) of JPMorgan Chase Bank, N.A., its sole member By: JPMorgan Chase Bank, N.A., not individually, but solely in its capacity as trustee By: Name: Title: Date: STATE OF 11/41 j § COUNTY OF tILV11QA § Di%vi& �c, "re& dam, � /4/zi/i2.• BEFORE ME, the undersigned authority, on this day personally appeared P{ ,nlcof-f (11(k P(USjOC4r of AT INDUSTRIAL OWNER 3 LLC, a Delaware limited liability company, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that s/he executed the same for the purposes and consideration therein expressed, in the capacity therein stated and as the act and deed of AT INDUSTRIAL OWNER 3 LLC. GIVEN UNDER MY HAND AND SEAL OF OFFICE this 1.135 day of 6 cc(' Wit, bars 12012. • Notary Public in and for the State of ANA P. MINKOFF NOTARY PUBLIC OF NE WJERSEY My Commission Expires 9/16/2016 Notary's Printed Name Page 29 Tax Abatement Agreement between City of Fort Worth; AT Industrial Owner 3 LLC; and ATC Logistics & Electronics, Inc. OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX ATC LOGISTICS & ELECTRONICS, INC., a Delaware corporation: By: Date: STATE OFN•N,,Gn COUNTY OM\\DY"Cv'§ BEF RE , the under$ignec�autlrh1oritythis day personally appeared R it nYM,v � �1 of ATC LOGISTICS ELECTRO CS, INC., a Delaware corporation, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that s/he executed the same for the purposes and consideration therein expressed, in the capacity therein stated and as the act and deed of ATC LOGISTICS & ELECTRONICS, INC. «IEN UNDER M HAND AND SEAL OF OFFICE this � day of , 2012. Notary ' u�or the State o Notary Posy Poe% ._' 0,•• •€I• •, tcyt i • . . se, lib '%3 �% l 11 �' �r irk - a ted Name HOLLY JEAN STOVER Notary Public, State of Texas My Commission Expires June 09, 2014 -ti •iY IIII YI 1 u s I . -J. a OFFICIAL RECORD CITY SECRETARY E WORTH, TX Page 30 Tax Abatement Agreement between City of Fort Worth; AT Industrial Owner 3 LLC; and ATC Logistics & Electronics, Inc. EXHIBITS "A" — Description and Map Depicting the AT3 Parcels "B" — Description and Map Depicting the AT4 Parcel "C" — Company's Tax Abatement Application "D" — AT3's and AT4's Tax Abatement Application "E" — Map of Central City "F" — Required Improvements Tax Abatement Agreement between City of Fort Worth; AT Industrial Owner 3 LLC; and ATC Logistics & Electronics, Inc. EXHIBIT "A" BOUNDARY DESCRIPTION (13550 Independence Parkway) BEING, a tract of land situated in the F. Cuella Survey, Abstract No. 267 and the William Huff Survey, Abstract No. 648, City of Fort Worth, Tarrant County, Texas and being all of that tract of land as described by deed to Alliance Gateway No. 5, Ltd. and recorded in Volume 12314, Page 634, County Records, Tarrant County, Texas, said tract being more particularly described by metes and bounds as follows: BEGINNING at a 5/8 inch iron rod at the southerly light -of -way line of Liberty Way (formerly Westport Parkway) at its terminus as recorded in Cabinet A, Slide No. 1079, said County Records, said point being in the northerly line of said Alliance Gateway No. 5 tract; THENCE N 89°51'39"E. 723.09 feet along said northerly line to a 5/8 inch iron rod with cap stamped "Carter & Burgess" found, the northeast corner of said Alliance Gateway No. 5, Ltd tract THENCE S 00°08'21"E, 765.00 feet to a 5/8 inch iron rod with cap stamped "Carter & Burgess" found, the southeast corner of said Alliance Gateway No. 5 tract; THENCE S 89°51 39"W, 1,433.00 feet along said southerly line to a 5/8 inch iron rod with cap stamped "Carter & Burgess" found, the southwest corner of said Alliance Gateway No. 5 tract; THENCE N 00°08'21"W, 352.62 feet along the westerly line of said Alliance Gateway No. 5 Tract to a 5/8 inch iron rod with cap stamped "Carter & Burgess" found, the beginning of a curve to the right. THENCE 137.63 feet along the arc of said curve to the right and continuing along said westerly line through a central angle of 07°57'56", a radius of 990.00 feet and a long chord of N 03°50'37"E, 137.52 feet to a 5/8 inch iron rod with cap stamped "Carter & Burgess" found, the beginning of a reverse curve to the left; THENCE 44.48 feet along the arc of said reverse curve to the left and continuing along said westerly line through a central angle of 04°10'42", a radius of 610.00 feet and a long chord of N 05°44' 14 'E, 44.47 feet to a 5/8 inch iron rod with cap stamped "Carter & Burgess" found, the beginning of a reverse curve to the right; THENCE 71.53 feet along the arc of said reverse curve to the right and continuing along said westerly line through a central angle of 04° 15' 05 ', a radius of 964.00 feet and a long chord of N 05°46'25 'E, 71.51 feet to a 5/8 inch iron rod with cap stamped "Carter & Burgess" found at the southerly terminus of Eagle Parkway South as recorded in Cabinet A, Slide No. 1079, said County Records, the beginning of a reverse curve to the left; THENCE 78.47 feet along the arc of said reverse curve to the left and along the easterly right- of-way line of said Eagle Parkway South through a central angle of 02°51'36", a radius of 1572.00 feet and a long chord of N 06°28 10"E, 78.46 feet to a 5/8 inch iron rod with cap stamped "Carter & Burgess' found, the beginning of a reverse curve to the right; THENCE 133.23 feet along the arc of said reverse curve to the right and along said easterly right-of-way line through a central angle of 84°49' 12", a radius of 90.00 feet and a long chord of N 47°27'03"E, 121.40 feet to a 5/8 inch iron rod with cap stamped `Carter & Burgess" found in the southerly right-of-way line of the aforementioned Liberty Way; THENCE N 89°51'39"E, 589.78 feet along said southerly right-of-way line to the POINT OF BEGINNING and containing 24.972 acres of land more or less to be known as: LOT 1, BLOCK 1, ALLIANCE GATEWAY SOUTH ADDITION i e� — INDEPHNIJBNCB PARKWAY X aN 9F^ bH s y� } ,g Izi� Lao —.INDEPENDENCE PARKWAY •uw ., WON( •w, _ am ^ I I i I+ i tmit0 P; I E� nw ng I� ait e tat 4 or �.D,I (E 41 roK I - s � It oP _ o= 9i wg a a� a� e �9 oa =es Gl4IE1 6 BU0.6F55, P!G v� w�anw�i�a,H Oh�S-,6 ATC Logistics and Electronics, Inc. 13550 Independence Parkway Fort Worth, Texas EXHIBIT "A" BOUNDARY DESCRIPTION (5201 Alliance Gateway) BEING, a tract of all situated in the F. Cuella Survey, Abstract No. 267, 'Tarrant County, Texas, and being a portion of that tract of land as described by deed to AIL, Investment, L.P., formerly known as Hillwood/Freeway, Ltd. and recorded in Volume 9831, Page 66 and all of Lot 2, Block 2, Alliance Gateway North Addition, an addition to the City of Fort Worth as recorded in Cabinet A, Slide No. 4037, Plat Records of Tarrant County, Texas, said tract of land being more particularly described by metes and bounds as follows: BEGINNING at a 5/8 inch iron rod with cap stamped ``Carter &Burgess" found at the southeast corner of said Lot 2, Block 2, Alliance Gateway North Addition and the southwest corner of Lot 1, Block 1, PC Service Source Addition as recorded in Cabinet A, Slide No. 2367, said Plat records, said point being in the northerly right-of-way line of State Highway No. 170 (variable width right -of --way), the beginning of a curve to the left; THENCE along the northerly right -of --way line of said State Highway No. 170 and then the easterly right-of-way line of Independence Parkway (120' right-of-way), the following bearings and distances: 398.13 feet along the arc of said curve to the left through a central angle of 06°53'30", a radius of 3294.04 feet and a long chord of S 71 °54'50"W, 397.88 feet to a 5/8 inch iron rod with cap stamped "Carter & Burgess" found; N 83036'22"W, 75.10 feet to a 5/8 inch iron rod with cap stamped "Carter &Burgess" found; N 37°26'38"W, 73.01 feet to a 5/8 inch iron rod with a cap stamped "Carter &Burgess" found, the beginning of a curve to the left; N OS°09'20"W, 132.87 feet to a 5/8 inch iron rod with a cap stamped "Carter &Burgess" found, the beginning of a curve to the left; 792.65 feet along the arc of said curve to the left through a central angle of 22002'47" a radius of 2060.00 feet and a long chord of N 16° 10'44"W5 787.77 feet; THENCE S 89015'41 "E, 739.35 feet leaving the easterly right -of --way line of said Independence Parkway to the northwest corner of the aforementioned Lot 1, Block 1, PC Service Source Addition; THENCE S 00044' 19"W, 822.25 feet along the westerly line of said Lot 1, Block 1, PC Service Source Addition to the POINT OF BEGINNING and containing 521,854 square feet or 11.980 acres of land, more or less, to be known as: LOT 2R, BLOCK 2, ALLIANCE GATEWAY NORTH ADDITION T me 1 saw on PLO O FS p IF e �a Ms a. %9�1� Z -. gF t0 g T 00aSO Slow %at to. mod Sol � Its 0 am 4 R$��RFor .•9 SVU 4N W ab� a a• w A o n 'o � gv 3 ask o ` wash w. u R£ J �M $' a �g e Ij o W W 0 W W vvv ATC Logistics and Electronics, Inc. 5201 Alliance Gateway Fort Worth, Texas r I,,f Mwt I i_N 0 EXHIBIT is BOUNDARY DESCRIPTION (13500 Independence Parkway) BEING, a tract %J land situated in the F. Cuella Survey, Abstract No. 267, Tarrant County, Texas, and being a portion of that Tract 9 as described by deed to Hillwood/Freeway, Ltd. and recorded in Volume 9381, Page 66, County Records, Tarrant County, Texas, said tract being more particularly described by metes and bounds as follows. CONNECTING at a 5/8 inch iron rod with cap stamped "Carter &Burgess" found at the southwest corner of that tract of land as described by deed to Alliance Gateway No. 5, Ltd. and recorded in Volume 12314, Page 634, said County Records; THENCE S 00°08'21"E, 50.00 feet to a 5/8 inch iron rod with cap stamped "Carter &Burgess" set, the POINT OF BEGINNING; THENCE N 89°51'39"E, 1245.00 feet to a 5/8 inch iron rod with cap stamped "Carter & Burgess" set; THENCE S 00°08'21"E, 541.99 feet to a 5/8 inch iron rod with cap stamped "Carter & Burgess" set' THENCE S 22°22'27"W, 341.29 feet to a 5/8 inch iron rod with cap stamped "Carter & Burgess" set, the beginning of a non -tangent curve to the left; THENCE 465.80 feet along the arc of the said non -tangent curve to the left through a central angle of 23°0026 a radius of 1160.00 feet and a long chord of N 78038'08"W, 462.68 feet to a 5/8 inch iron rod with cap stamped "Carter & Burgess" set, THENCE S 89°51139"111, 225.34 feet to a 5/8 inch iron rod with cap stamped "Carter & Burgess" set, the beginning of a curve to the right; THENCE 121.33 feet along the arc of said curve to the right through a central angle of 07°O1' 18"5 a radius of 990.00 feet and a long chord of N 86°37'42W 121.25 feet to a 5/8 inch iron rod with cap stamped "Carter & Burgess" set, the beginning of a reverse curve to the left; THENCE 74.76 feet along the arc of said reverse curve to the left through a central angle of 07°O1' 18", a radius of 610.00 feet and a long chord of N 86°37'42"W, 74.71 feet to a 5/8 inch iron rod with cap stamped "Carter & Burgess" set; THENCE S 89051'3955W, 150.00 feet to a 5/8 inch iron rod with can stamped "Carter & Burgess" set, the beginning of a curve to the right; THENCE 141.37 feet along the arc of said curve to the right through a central angle of 90°0'0", a radius of 90.00 feet and a long chord of N 45°08'21"W, 127.28 feet to a 5/8 inch iron rod with cap stamped "Carter & Burgess" set; THENCE N 00°08'21 "W, 663.00 feet to the POINT OF BEGINNING and containing 21.853 acres of land, more or less, to be known as: LOT 29 BLOCK 19 ALLIANCE GATEWAY SOUTH ADDITION I sit.�{ '+ Ofi 1 m �. IHtW M �m� Y BwWI Iau-t l,�Y gllN � �. >n 'JNI'SS30Y(18 9 aumn Flow Fill Ang uPost IF ,pjJDy iTi� e a a. 00 all Ons dCgy.0 IN No ¢Fa y ^ 6 p 1 Y Y S Y 11•••�� d_ xbbbb.Yt'diLcS `g .. 83b :d at a€s ?P I x S- O t ¢ L9"^ '�C ..1t�tl i 65� / Fna Rig c 4¢ta�s- d a .is ii�' bs4 9d_ z g� (/� 0 9 °a xg 9:s ��.-e_. 8`xx Ilwaa ~ a oI 3 in x3sd- 'S' �' Y •• 'eV i) .... � z' d ydfs 3E: ~'" - ?• Imo, �~ Alto Is At Ali 6 Yips FF E': .! LL 'u a_ a 1� 5 9� j 'a_ 5r4 e s No r+l O �cg cbg°baBe-# �K'^ cy r:' �•• 1 I� k. q a _ r5.p$3'cbivy.. aY r6 e� 611ij ° ; r $ t g Z bra:N.. S ysli.vii Vs ss el RG s, e 4 a /t` it ' 4v g a V gy_jb�gt 61 yc • y 3., _: y8 {. s�! rL:, - � V g - . J F--I e AM d 9 ff@@d��giiY! Gg.� V< � '§.� .p �E -fi- LL FHool s g4 dF �BgsaY9 yy aS "" g g e ' S - .. - - Q W @ Y Y 8 a 4T, .Y ..e� g. z 3yd FF.a 9� s, = � ;5 jo, g s . . _j `4 E 4• c�i A _ s EE �.:_ d,`e g: "xr. �• K g^g= 1 - Z rh �S q°vd im eaG y3 01 Ali �Et" ALI H �JAli- 6 y: alb 51 t.z.":€B 4.• z :'r6<b6,nW =em _ t U x �. rr 17� o fie.,M., - t kid so IN I I FAA, 4Y4'0N-19VtllY[V• �• A *mow« ); 4.000 < .,. j=' / IN if a s.�. „I It I a ti At it e O Fa f ~ da .-i At it At -7 4 e e, L Ir of is 11 AN eS'A'! ` . `Ad z fif 4b, IN to At 4 No r `d 6 IF �rAll Ot7 -21 �kil i psi �gp c" a A ....04 At ,,.k; s i d iF:a p bb V /a�w ,l,ti «. 1i i 2 aE :` IF if Ill oil m it, iv i FIQ AVAOMd aDNHQNHd8QN1 _ _ a.... e..•._ ...,.,,, 44.I,.,.m .....,, .,....,.. r. �,,,.,,, ! Y _--- - avnviuva aIDNE(I iaaadrn _._._ .,,- - ,�-,_'.-• ; i - - - - - r :::r' .now a. 44 is"M" aJ ti Or e t:._..-._-- CO 6 No 13 R All Is 5 x „x „ V NVY ATC Logistics and Electronics, Inc. 13500 Independence Parkway Fort Worth, Texas all e6=i Q 11F1�1�=�FFI�n 1� N9�IE�1�11111Fe ef�� ai, f9�'��%A .e5r� D�11�1iN1t��o-SieF it�l�i�a�li=fib D ei1 A�tlllhll►19F' ` o rAdz A E F 6 - _ - �F -��-� `•F�1�111F - Mp- - ..- _ 1_1EIIeEe1�eE1v1�1���elelh�o�rlE�t�1�p11 �� _ f �el)tli01111ll .56el i ltlf�"! �A aD� -€ 1� tl=jE� j It It 11llE AA _- � — ---- ! r - r r- ddd, _- i- _ - _� AA _� Add I _ r AA & tf ..- WESTPORTAd 1 �'ll�' � 1111�5 1. • �l4,�e 1 Iv1&C Review Page 1 of 3 Official site of the City of Fort Wo th, Texas FORT WORTH COUNCIL ACTION: Approved on 10/9/2012 DATE: 10/9/2012 REFERENCE NO.: C-25913 LOG NAME: 17TAATC CODE: C TYPE: NON -CONSENT PUBLIC HEARING: NO SUBJECT: Authorize Execution of Tax Abatement Agreements with ATC Logistics and Electronics, Inc., AT Industrial Owner 3, LLC, and AT Industrial Owner 4, LLC, or Affiliated Entities for Renovation and Expansion of Business Facilities Located at 5201 Alliance Gateway, 13500 Independence Parkway and 13550 Independence Parkway (COUNCIL DISTRICT 2) �zOR zl_ RECOMMENDATION: It is recommended that the City Council: 1. Authorize the execution of a Tax Abatement Agreement with ATC Logistics and Electronics, Inc., and AT Industrial Owner 3, LLC, or affiliated entities for the renovation and expansion of business facilities operated by ATC Logistics and Electronics, Inc., located at 5201 Alliance Gateway Freeway and 13550 Independence Parkway; and 2. Authorize the execution of a Tax Abatement Agreement with ATC Logistics and Electronics, Inc., and AT Industrial Owner 4, LLC, or affiliated entities for the renovation and expansion of business facilities operated by ATC Logistics and Electronics, Inc., located at 13500 Independence Parkway. DISCUSSION: ATC Logistics and Electronics, Inc. (Company), is North America's second largest third -party logistics provider. The Company has over the amount of $1.5 billion in annual sales and 10,000 employees across the country. Locally, the Company occupies approximately 1,000,000 square feet of industrial space at Alliance Business Park. However, the leases at the three facilities expire in 2013 and the Company is considering relocating its operations to Atlanta, Nashville or Reno. Project: The Company is considering the modernization and expansion of its existing facilities located at 5201 Alliance Gateway Freeway, 13500 Independence Parkway and 13550 Independence Parkway. These facilities would be leased by the Company for an additional eight years, with an option to renew the lease. The facilities located at 5201 Alliance Gateway Freeway and 13550 Independence Parkway are owned by AT Industrial Owner 3, LLC. The facility located at 13500 Independence Parkway is owned by AT Industrial Owner 4, LLC. In order to retain the Company in Fort Worth, the Housing and Economic Development Department is proposing two Tax Abatement Agreements, one with Company and AT Industrial Owner 3, LLC, and the other with Company and AT Industrial Owner 4, LLC, that together could potentially abate up to 70 percent of the City's ad valorem taxes on the incremental value of new business personal property investment installed at these sites for up to eight years, with the opportunity to earn two additional years of abatement by providing the City of Fort Worth (City) a copy of executed lease renewals for the facilities prior to the end of the original eight year term. The proposed project will have a minimum aggregate investment in the amount of at least $18,500,000.00 in real and business personal property by December 31, 2016. The property owners will oversee construction of the new leasehold improvements and will retain ownership of the buildings once the improvements are completed. Under the proposed lease Agreement, the http://apps.cfwnet.org/council�acket/mc_review.asp?ID=17525 &councildate= l 0/9/2012 10/ 12/2012 q&C Review Page 2 of 3 Company will be responsible for payment of all property taxes on the improvements as part of its rent. The project will be completed over two phases. Phase I consists of $1,000,000.00 in real property improvements (exclusive of land costs) and $7,000,000.00 in new non -inventory business personal property improvements by December 31, 2013. Phase II consists of an additional minimum investment in the amount of at least $10,500,000,00 in new non -inventory business personal property. Actual personal property investment amount will be determined by the Tarrant Appraisal District's (TAD) official tax rolls. Failure to meet Phase I investment is a condition of default and will result in immediate termination of the Agreement. Failure to complete Phase II will result in the reduction of the overall abatement percentage by 15 percent for a maximum of 55 percent for the remainder of the Agreement. Utilization of Fort Worth Companies and Fort Worth M/WBEs (Real Property Improvements A minimum of $350,000.00 or 35 percent of real property improvements must be expended with Fort Worth contractors and a minimum $250,000.00 or 25 percent of real property improvements with certified Fort Worth M/WBE. Dollars spent with certified Fort Worth M/WBE companies will also count as dollars spent with Fort Worth companies. Employment Commitments: The Company will retain its current full-time employee workforce of 1,705 full-time employees (FTEs) during the term of the Agreement and will employ an additional 135 new FTEs for a total of 1,840 employees by December 31, 2013 and continuing through December 31, 2015. The Company will employ an additional 239 new FTEs for a total of 2,079 employees by December 31, 2016 through the remainder of the Agreement. The Company will fill 35 percent of all FTEs with Fort Worth residents and 30 percent with Fort Worth Central City residents. Utilization of Fort Worth Companies and Fort Worth M/WBEs (Supply and Services): The Company has committed to spend a minimum of ?500,000.00 of annual discretionary Supply and Service Expenditures with Fort Worth companies and $400,000,00 with certified Fort Worth M/WBE companies. Dollars spent with certified Fort Worth M/WBEs will also count as dollars spent with Fort Worth companies. Discretionary Service and Supply contracts shall include all expenditures whether underwritten contractor ad hoc purchases, other than for electric, gas and water utilities related to the operation and maintenance of the Project Site. Supply and Service Expenditures do not include expenditures for temporary direct labor at the Project Site, City Commitments All tax abatements granted are for City property taxes based on the incremental increase in value of business personal property as determined by TAD. Up to 70 percent of City property taxes may be abated for a maximum period of up to ten years (with an executed lease renewal) as depicted in the following table: Company Commitment Potential Abatement Real and Personal Property Investment 15 percent Fort Worth Contractors 5 percent Fort Worth M/WBE Contractors 5 percent Overall Employment 15 percent 10 http://apps.cfwnet.org/council�acket/mc_review.asp?ID=17525 &councildate= l 0/9/2012 10/ 12/2012 N4&C Review Page 3 of 3 Employment of Fort Worth Residents percent Employment of Fort Worth Central City Residents 10 percent Utilization of Fort Worth Companies for Services and 5 Supplies percent Utilization of Fort Worth M/WBE Companies for 5 Supplies and Services percent TOTAL 70 percent Except for cases of default, failure to meet a commitment will result in a reduction of the corresponding component of the abatement for that year proportional to the amount the commitment was not met or for the duration of the abatement in the case of construction commitments. The project is located in COUNCIL DISTRICT 2. FISCAL INFORMATION/CERTIFICATION: The Financial Management Services Director certifies that this action will have no material effect on City funds. TO Fund/AccountlCenters Submitted for City Manager's Office by_ Originating Department Head: Additional Information Contact: ATTACHMENTS 120920 ATC Map RZ84-5.pdf FROM Fund/Account/Centers Fernando Costa (6122) Jay Chapa (5804) Ana Alvarado (2661) Robert Sturns (8003) http://apps.cfwnet.org/council�acket/mc_review.asp?ID=17525&councildate=l0/9/2012 10/12/2012 EXHIBIT 1. CbMPANY INFORMATION Company Name: ATC Logistics & Electronics Date: July 6, 2012 Company Address: 100 PapercrattPark City: Pittsburgh State: PA Zip: 15238 Contact Person: James Hall Title/Position: Director of Taxation Telephone Number: 412-820-3743 Mobile Telephone Number: ::-Mail Address: James.Hall(cDoem Fax Number: 412.820.3762 Company Ownership {check one): j- Public Traded Stock r Privately new Form of Business (choose one): Corporation How long has the company been in operation (Years)? 113 Describe the company's principal business (attach additional sheets as necessary): GENCO ATC is North America's second largest and Global Top 50 third -party logistics provider with over 150 customers including many Fortune 500 manufacturers, retailers and US government agencies operating from 3 corporate offices in , Pittsburgh, Milwaukee and Green Bay. The company has over $1.513 in annual sales and over 10K teammates. A high level of focus in placed on quality training to include Lean/Six Sigma which contributes to the company's success. GENCO is a recognized leader in reverse logistics, handles over $1.5 billion annually in freight management, and has visibility to $3.5 billion in parcel freight annually. A leading B2B wholesaler of surplus inventories, liquidating more than $10M daily. 2. PRQJ�C`T INFO�ZMATIO(�+ For real estate projects, please Include below the project concept, project benefits and how the project relates to existing community plans. A real estate project is one that involves the construction or renovation of real property that will be either for lease or for sale. Any incentives given by the City should be considered only `gap" financing and should not be considered a substitute for debt and equity. However, the City is under no obligation to provide gap financing just because a gap exists. In order for a property owner/developer to be eligible to receive incentives and/or tax abatement for a project, the property owner/developer.• A. Must complete and submit this application and the application fee to the City; B. Ownerldeveloper or owner/developers principals must not be delinquent in paying property taxes for any property owned in Fort Worth; C. Owner/developer or owner/developer's principals must not have ever been subject to the City of Fort Worth's Building Standards Commission's Review,* D. Owner/developer or ownerldeveloper's principals must not have any City of Fort Worth liens files against any other property owned by the applicant property ownerldeveloper. "Liens" including, but not limited to, weed liens, demolition liens, board-up/open structure liens and paving liens. For business expansions projects, please include below services provided or products manufactured, major customers and locations, etc. For business expansion project involving the purchase and/or construction of real estate, please answer a!1 that apply. Type of Project (choose one): Commercial/Industrial Describe the company's plans for expanding or locating in Fort Worth (attach additional sheets as necessary): GENCO is the nations 2"dlargest 3PL with 130 locations throughout the US and Canada and 38 million square foot of space under roof. GENCO's local operations are currently located within Alliance Business Park, in three separate leased buildings. Company leadership is evaluating at estate options to include renewal within Alliance Business Park or potential consolidation to Nashville, TN, Reno, NV or Atlanta, GA. Comparative analysis for each opportunity is in process with a projected time line for decision making being Q4, 2012. Page 2 of 5 Describe the specific operations to be performed at the proposed Fort Worth facility (attach additional sheets as necessary): The current project within Alliance is part of GENCO's product lifecycle logistics for the technology industry to include: final product configuration, warehousing and distribution, reverse logistics, test repair and refurbishment, electronics liquidation and a -waste recycling, Area (Square Feet) Requirements: (a) Office (b) Manufacturing (cj Warehouse (d) Showroom/Retail (e) Other 11000,000 Total Area (a+b+c+d+e); 1,000,000 SF Is the company expanding its existing local operations or relocating its operations from somewhere else to our area? F%/' Expansion F Relocation If relocation, where is the company currently located? Does the company plan to lease or own the facility in Fort Worth? F7 Lease F Own If the company is planning to lease space in Fort Worth, what is the lease term? 8 years Will the facility be built or does the facility already exist? F New 57 Existing If the company is occupying an existing facility, what is the address? 5201 Alliance Gateway, 13500/13550 Ind. Pkwy If the company is constructing a new facility, what is the approximate location or address of the site? N/A If the company is constructing a new facility, what is the anticipated date far commencement of construction? Anticipated date for company to move into the facility: Devement re�questsat will bg sought�f r the gr,�ject sel_all tha�ly�; (— Replat I- Rezoning Current Zoning: (— Requested Zoning: Real.�tate Dev�,lo�ment 1. Current Assessed Valuation of: Land $ 7,684,637 Improvements $ 27,140,449 Total Size of Project: 969,659 SF Total Capita( Investment: $ 17,330,114 (including lease payments} Hard Construction Costs: $ 3,0107840 2. For mixed -use projects, please list square footage for each use: N/A Page 3 of 5 Pq onal Property and InvepAo ry 1. Personal Property Cost of equipment, machinery, furnishing, etc.: $ 25,098,876 2. Inventory and Supplies Value of Inventory: $ 14,721,147 )— Lease IV Purchase Value of Supplies: $ 938,298 Percent of inventory eligible for Freeport Exemption (inventory, exported from Texas within 175 days) 3. EMPLOYMENT AND JOB CREATION From Development 1. How many persons are currently employed? 1,915 2. What percent of current employees above are Fort Worth residents?37 % 3. What percent of current employees above are Central City residents? 37 4. Please complete the following table for new jobs to be created from direct hire by applicant. total Jobs to be Geared Less Transfers" Net Jobs °h of Net Jobs to be filled by Fort Worth Residents %of Net Jobs to be filled by Ci entral City residents 1 First Year By Fifth Year By Tenth Year 135 374 374 0 0 0 135 374 374 If any employees will be transferring, please describe from where they will be transferring. . Please attach a description of the jobs to be created, tasks fo be performed for each and wage rate far each classification. 5. Does the company provide the following benefits: V Retirement (✓ Health F✓ Dental r Domestic Partner 6. Average wage paid to employees to be located at Fort Worth facility: $ 41.64 4. 1INCENTIVES RE(�UEST Incentives) Requested: j✓ Tax Abatement ►— Chapter 380 Economic Development Program Grant Do you intend to pursue abatement of County taxes? Yes r No What level of abatement will you request: Years? 10 Percentage?70 % 5�LOCAL COMMITMENTS During_Construction What percent of the construction costs described under Real Estate Development will be committed to: Fort Worth businesses? 35 Fort Worth Certified Minority and Women Business Enterprises? 25 Page 4 of 5 For Annual Sup"I and ServicgNeeds Regarding discretionary supply and service expenses (Le landscaping, office or manufacturing supplies, janitorial services, etc.): 1. What is the annual amount of discretionary supply and service expenses? $ 19.3M 2. What percentage will be committed to Fort Worth businesses?50 ova 3. What percentage will be committed to Fort Worth Certified Minority and Women Business Enterprises? 40 DISCLOSURES Is any person or firm receiving any form of compensation, commission or other monetary benefit based on the level A incentive obtained by the applicant from the City of Fort Worth? If yes, please explain and/or attach details. GENCO ATC employs the services of Ginovus, LLC, an Indiana based site selection and economic development advisory firm, to assist in the processes of incentive procurement and approval as well as compliance management for its expansion projects throughout North America. These documents must be submitted with the application, otherwise the application will be deemed incomplete and will not be reviewed: *see attached Exhibits a.) Attach a site plan of the project. b.) Explain why incentives are necessary for the success of this project. Include a business pro -forma or other documentation to substantiate your request. 0 Describe any environmental impacts associated with this project. d.) Describe the infrastructure improvements (water, sewer, streets, etc.) that will be constructed as part of this project. e.) Describe any direct benefits to the City of Fort Worth as a result of this project. f.) Attach a legal description or surveyor's certified metes and bounds description. g.) Attach a copy of the most recent property tax statement from the appropriate appraisal district for all parcels involved in the project. h.) Attach a description of the jobs to be created (technician, engineer, manager, etc.), tasks to be performed for each, and wage rate for each classification. i.) Attach a brief description of the employee benefit package(s) offered (i.e. health insurance, retirement, public transportation assistance, day care provisions, etc.) including portion paid by employee and employer respectively. j.) Attach a plan for the utilization of Fort Worth Certified M/WBE companies. k.) Attach a listing of the applicant's Board of Director's, if applicable. I.) Attach a copy of Incorporation Papers noting all principals, partners, and agents and all Fort Worth properties owned by each. the company is responsihle for payiny $5,000 as an application fee. If the application is withdrawn before the project is presented to City Council in Executive Session, the fee is refunded. Upon presentation to City Council in Open Session, $2,000 is non-refundable and is applied to offset costs incurred by the Housing and Economic Development Department. Upon approval by City Council, the balance of $3.000 can be credited towards required building permits, inspections fees, replatting fees, and other costs of doing business with the City related to the development. Any unused credit balance upon completion of the project will be refunded upon request from the company. On behalf of the applicant, I certify the information contained in this application, including all attachments to be true and correct. I further certify that, on behalf of the applicant, I have read the current Incentive Policy and all other pertinent City of Fort Worth policies and I agree with the guidelines and criteria state therein. Printed Name: i lww�'e. Signature: u Page 5 of 5 Title: V � r'riy MJ Ce Date: Z 5 ZU 1 7— s y 1 0 ■ N N N Exhibit B Genco ATC's multiple leases expired at a staggered pace by the end of Q4 of 2013. Presently, operations are split between three separate warehouse facilities within proximity of each other in the same commercial park. The opportunity to consolidate all operations into one facility would result in efficiency gains and cost savings. Availability of economic development incentives would mitigate some of the costs associated with remaining in the three existing sites and make remaining at those locations a more financially viable choice. Exhibit C The activities associated with this project will not cause environmental harm or contamination. Inherently Genco ATC's operations, nationwide and locally, have a positive impact on the environment by improving the efficiency of transportation logistics on a very large scale. More specifically, one of the functions of this particular facility is in processing and handling a -waste and other recycled goods. Exhibit D There are no xelevant infrastructure improvements associated with this project. Exhibit E The primary benefit of this project for the City of Fort Worth is the retention of 1,915 teammates plus the creation of another 374 new jobs through the end of 2017. GENCO is a business whose history goes back more than 100 years, over which the company has grown to be the second largest third party logistics company in the country. The significant number of jobs being retained and created by this well established, continuously growing company offers valuable stability in the job market of any local economy. In addition, investment in new real property improvements will result in increased tax revenue net of the abatement and will be fully taxable in the years beyond the abatement term, providing an ongoing stream of new revenue. Exhibit F Legal Descriptions 5201 Alliance Gateway Freeway: Alliance Gateway North Addn Blk 2 Lot 2R 13500 Independence Parkway: Alliance Gateway South Addn Blk 1 Lot 2 I3550 Independence Parkway: Alliance Gateway South Addn Blk 1 Lot I 6t2�'1 x Property flax Record Account: 000073�583b APD: 4149 2 2R Location: 00005201ALLIANCE GATEWAY FWY Legal, ALLIANCE GATEWAY NORTH AWN RLK 2 LOT yR ro>sasaa6 mt.: AT IP0USTRIAL C1hNER 3 LLC 13609 FFRTTAGF PKWY STF 200 FORT WORTH TX 76177- 4323 l AJI tsars 1 Exhibit G Acres: 31.9B0 Yr Built: 0 Frozen Yr: NONE Frozen Amt: t0.00 Sq Ft: 0 Def. Start, NONE Def. End: N6NE R II: R hnee SNreh 1 I011 Yaluos Lind 15b55e@ LTpIaverment 4409741 7011 Esainpttons Qarartappinq Dlatrlct Accounts G ct: an the dSlatement button to uew tctsl tex !sue. Gick �t7 I^rt e�aaynl4x`t Cv:'nt1 tt� t'tt:?Ap ^ cnvj', c:attl a R!;hoek peym0nt. Levy Amount Ye.TrUn1t Amount Paid 2011 M 61,n9C.15 VIM* 2011 22U 15,T7Z.12 1 UM I Z 2011 223 1,194. 86 00,194.86 2011 224 130515.22 13,61 S.2' 2011 MS 11.B99.90 86899.w ?3,5tPL25 9005M25 Prrva tv Papa i Tar Eanmator � ( e-Deamcnt ) ( e-Statement LDue i PenalCyr Interest Pen It Aa:rssl611n Statemr•rt Total Receipt Due Date O.OD 0ltt,2�112 0N'0 'n12a92 0.0D 'l11r�'t92 o.vo "n1r�71z P�Glle Tn!o'i+alnn An 100E Wfitt>aAWftt, FortWarth, Ttxac 7574n, R.7- RRa-"' - Dkase xn0 p,.esllons anti oanlmMta reaerdlnp Nis aeebslte tea Wehmasterx�tatran:co�_ntv.com. Taarara Coun-e eamnnrr tv htmmaa:. caner+t k sae eetU eaa w a Mk wno. rv.ey eAwt M ■eeaa >. Berra aeee Eyemr.r n • -m, wa a .-�,..r.. :-.� -r.- r ,•.i �+ ,. ryd r Ma w' rfe+ne Mm~ n „Iirm peons : a0w, at~ nr-@vt v Taws[ n . , , . n CwrglwWatas�wrae.'.•T-. - ;�.•.-.,,y.....,,, a�0o•aas airy /s .�a ras r ft-h M1um Na �a+an: Cush �r aaa. CoptnaRt 2001-204/ Tenant County, Tx 6r2Ai12 Property Tax Record Account 0000706727; APO: 414L 12 Location: 00135003NDIPENDENCE PKWV Legal: ALt 10.NCE QATFYMV SOLRM ADON I3LK 1 LGT 2 Owno r; A7 tN7U3'fRUL O'ANER � LLC 13600 k€'41TAGE PK4WY ST6 2o0 FORT WORTH TX 76L774398 Tarraty Tar tllpygrye Acres: 2x,d53 Yr Built: 0 Frozen Yr: NONE frozen Amt: iD,DD Sp F t: 0 Del. Start: NONE Del. End: NONE Roll: R t Of �rce 1 2011 Values LanE 2855750 [rrprovernert s058326fl 70L1 Exemptlons CMerlappinq Dlstrlct Accounts t:('fiY. 7� Ih= e-StE[Emerr 6uttan LO M?lY Isiej I.�C �lJ�. t;;irk �-:^ ',::d�:lyrrrert tw;;nr, t� make a cratal cstrd or �trck payment. l An YeM! 1 l raa Eftttwato► i t rPermcnt � (_e Ylblen+eat l Levy Amount Levy Col Total ReceiptYear Unit Amount paid Due ^aM Interest Penalty Due Date 201 i t m 114,9011.54 114.gQ3!4 0.00 A �"M 0.00 0-00 0100 111 s12012 2011 220 15,4711," 35.tr6fi9 0.00 00 0.00 0.00 DAO 1ntW12 2II1! 73 2,587.8? 2.r87.90 OAC C.m 0000 ORD OAD '111112012 2911 224 M,527.10 30.627.10 0.0C 0.00 0.00 gin 0+00 1111=2 2011 2P5 20,R10.09 206020,09 O.OG 0.00 0.00 0.00 0.00 111tr1012 Tc1 03.71' D33 717,52 0.00 0.00 0.0C, 1,L- ynvaa PoNd A¢sss�kll ^. >wtrment y.:Gl+c ;n•arnaaan Aa 100E Weatt+erfonl, foR WOrtfi, Taraf 7fi19fi. P17- BR6-: t S: pkafe fend 44esefeml and aon+maas tegetdMq Mfg vteDsltc to wehmasterCttarrantmuntv.rnm. Tyre LO,1rq � F /RWR� ea,Y7d � e� �► � � • /I+ft �. lover �Ife�l � 4�M • •,r� tlrl rMtir sA.• Wd � CI'Jeset ,1ww. ■ A/ ar rti+ MOM � trn � mw�av, ana~ w eww trees a rawt.e. M InilM mower d Trwi Co1vV7 •iwY 4 anwl'l leTrr Cr+rx . nx woTslle 4raw a�vv ar, e •Boar, aM � rweT r�r r Fk Hem eu �rsrc eo+aa' �r w. Copyngn! 2001-2004 Tarant Coinly, TX enorru Property Tax Record Account: 0000G999144 APO: 414L 1 1 Locatlon: D4t35507h17EDMENCEPKWY Legal: ALLIANCE GATPYlAV SOU1 r F AN ELK 1Lc1'1 OO yE�A9144' Owner : AT IfCn I HIAL 0WIER S LLC L3600 KFo1TAGEPKWY STE 20D FORT WORTl1 TX 7b177-4323 ge'rarrt County Tax N'ahSltn ro I 3011 Yalucs Llrttl 32fi33d1 LneoroYemeot 9111559 I011 Exemptions t3varlopping District Accounts d ck on thra �:TStatEmcnl button Eo Mc>W Total Tax Duo. dick on t� F?aymeri �.1�sn !e m=_ke a cre�_ c1r1 r_r aC^=ck aa?mer� �� � All rNre � � Taa E�4rnator � � e-permcnl ) ( e-Stetement ) Levy Amount Levy Col Total Receipt Year Unit Amount Paid Due Penally InterestCal Due Date Mill on 105,806.25 105.815%25 ROD 0.00 O,DO 0.01) 0.00 '.f1�Yle 12 2D11 220 32,177.GD 37V 70AD ROD 0.03 aoo 0.0D ROO ` lfi`2012 2011 221 2,475.OD 2,L+5OG ROD 0.03 am 0.00 0,00 `- M2312 2011 224 2E,272.25 V00225 0.00 0,03 O.CO O.OD ORO VIoC912 2014 225 18,tvmw 10,435.94 ROD 0,03 0.00 O.CD 0.7C iMtM12 PnvecvPofGv Arras+.rttlltr •t m rt p Jr "�`o--re'+r•r �•+ ICC E Weatherford, Pert Wane, Te+e� 7b13fi. 817- B8i-1_' _ C pkase send garspons arc mT menu reparJ inq this wtusite to WlbfT1A5t2riDr_a rTB ntCDLrlty.CO R1 TaeiR Cacao �mvdes rte rMrmabar mris�ed r 7b wtl to a• a pt ins lbrY Mfwt N era s rnaa or, rNrmrt o.. aro..ae r. : - . - .. - MipY r teas rdsmlw%mrMi•ed n area pawn s rrnwMd. r /IWI rases of sewn Ccarlr AWAM be W tjx" _4"w GwM ■ ru- r=.0 g$jt -fk •"V I.<i I:: F ,$.. a•is &"g b Rise d H. hom tn. -&� [nrrv.M as. CopYn9M 2001-2004 Tar -a at County, TX Exhibit H Warehouse/Logistics ($17.08/hr) - 90% of total workforce. Moving, sorting, loading, scanning, packaging, and handling goods Executive/Administration ($74.65/hr)- Management and oversight of day to day business operations Quality -Compliance ($31.55/hr) - Ensures operations adhere to company policies and government and industry regulations Engineering ($38.88/hr) - Process and system design and development Sales ($66.89/hr) — Generate new business and service existing clients Human Resources ($39.65/hr) — Manage employment administration including payroll, benefits and hiring IT ($37.85/hr) — Develop and maintain information systems used to run office and warehouse operations Accounting/Finance ($31.26/hr) — manage business accounts and budgets Materials Management ($41.64/hr) — create and enact processes to most efficiently utilize resources and materials handled by the company Exhibit I Employee Benefits Summary Exhibit J All contracts will be bid competitively and be made available to MBE and WBE status businesses. Ultimately Genco ATC will select the most qualified and competitively priced contractors and suppliers which it believes will best provide the scope of services required for the project. Exhibit K Peter 0 Georgiopoulos has served as Chairman and as a member of our Board of Directors since our inception. Since 1997, Peter C. Georgiopoulos served as Chairman and a member of the board of directors of General Maritime Corporation and its predecessors, which he founded, and he served as CEO from 1997 to 2008 and President from 2003 to 2008. Under the leadership of Mr. Georgiopoulos, General Maritime Corporation grew from a single ship ownership company to what today is an industry leader listed on the New York Stock Exchange. Mr. Georgiopoulos is also Chairman and a director of Aegean Marine Petroleum Network, Inc., a company listed on the New York Stock Exchange. Mr. Georgiopoulos has also served as a director of Baltic Trading Limited, a subsidiary of the Company, since its initial public offering in March 2010. From 1991 to 1997, he was the principal of Maritime Equity Management, a ship -owning and investment company that he founded in 1991. From 1990 to 1991, he was affiliated with Mallory Jones Lynch & Associates, an oil tanker brokerage firm. From 1987 to 1990, Mr. Georgiopoulos was an investment banker at Drexel Burnham Lambert. Before entering the investment banking business, he had extensive experience in the sale, purchase and chartering of vessels while working for shipowners in New York and Piraeus, Greece. Mr. Georgiopoulos is a member of the American Bureau of Shipping. He holds an MBA from Dartmouth College. As a result of these and other professional experiences, Mr. Georgiopoulos possesses knowledge and experience regarding our history and operations and the shipping industry, finance and capital markets, that strengthen the Board's collective qualifications, skills and experience. Robert Gerald Buchanan serves as our President. Mr. Buchanan has 40 years of shipping experience, holding various senior operating, engineering and management positions. Before joining our company, Mr. Buchanan spent eight years as a Managing Director of Wallem, a leading technical management company. As the senior executive at Wallem, Mr. Buchanan was responsible for the safe and efficient operations of close to 200 vessels, as well as management of approximately 500 onshore and seagoing staff. From 1990 to 1996, Mr. Buchanan was Technical Director of Canada Steamships Lines of Montreal, overseeing a fleet of bulk carriers. Before this, Mr. Buchanan managed an oceanographic research vessel for NATO from 1986 to 1990, was Superintendent Engineer of Denholm Ship Management's United Kingdom office from 1982 to 1986, and Chief Engineer of Denholm Ship Management from 1969 to 1982. Mr. Buchanan was educated at Glasgow Nautical College and obtained a First Class Engineers license for the both steam and motor ships. Among his industry affiliations, Mr. Buchanan was a member of the International Committee for Gard Protection & Indemnity Association. John C. Wobensmith has served as our Chief Financial Officer and Principal Accounting Officer since April 4, 2005. Mr. Wobensmith is responsible for overseeing our accounting and financial matters. Mr. Wobensmith has over 15 years of experience in the shipping industry, with a concentration in shipping finance. Before becoming our Chief Financial Officer, Mr. Wobensmith served as a Senior Vice President with American Marine Advisors, Inc., an investment bank focused on the shipping industry. While at American Marine Advisors, Inc., Mr. Wobensmith was involved in mergers and acquisitions, equity fund management, debt placement and equity placement in the shipping industry. From 1993 through 2000, he worked in the international maritime lending group of The First National Bank of Maryland, serving as a Vice President from 1998. He has a bachelors degree in economics from St. Marys College of Maryland and holds the Chartered Financial Analyst designation. Stephen A. Kaplan serves on our Board of Directors. From 2001 to the present, he has served as a director of General Maritime. Since 1995, Mr. Kaplan has been a principal of Oaktree Capital Management, LLC, a private investment management firm, where he co -manages Oaktree's Principal Activities Group which invests in majority and significant minority positions in both private and public companies. Mr. Kaplan currently has in excess of $3.5 billion in assets under his management. Since 1993, he has served as portfolio manager of all of Oaktree's Principal Opportunities Funds, including OCM Principal Opportunities III Fund, L.P. and OCM Principal Opportunities Fund IIIA, L.P., which collectively owns approximately 66.5% of Fleet Acquisition, our sole shareholder. From 1993 to 1995, Mr. Kaplan was a Managing Director of Trust Company of the West. Before joining the Trust Company of the West, Mr. Kaplan was a partner of the law firm of Gibson, Dunn & Crutcher. Mr. Kaplan currently serves as a director of numerous private and public companies. Nathaniel C. A. Kramer serves on our Board of Directors. Mr. Kramer is a principal at Mercantile Capital Group LLC, a private equity firm with offices in New York and Chicago, and Managing Director of his firm's New York office from 1999 to present. He brings over 20 years of investment experience in both the public and private capital markets. He started his career with Allen and Company, a private equity firm, and recently served as its Vice President. Mr. Kramer has led investments in a wide range of industries including telecommunications, wireless infrastructure, waste management, data communications, B2B commerce and Internet infrastructure sectors. Mr. Kramer also serves on the boards of MoveOnIn, Inc. and Environmental Asset Management. Mark F. Polzin has served as a director of our company since July 27, Z045. Mr. Polzin is President of Ranch Fiduciary Corporation, Farms Fiduciary Corporation, and Laurel Fiduciary Corporation. Mr. Polzin is also Managing Director of The Oversight Company and Manager of Wyoming Consulting LLC, and a senior consultant to Cymric Family Office Services and Family Office Exchange. On July 1, 2007 Mr. Polzin retired as President and Chief Executive Officer of Moreland Management Company, where he had served as an officer since 1989. Prior to joining Moreland he was an executive and director of several mid -western community banking organizations. He holds a B.S. in Economics from the University of Wisconsin -Milwaukee and a J.D. from Marquette University Law School. Mr. Polzin is a Regent of Concordia University Wisconsin. Rear Admiral Robert C. North, USCG (ret.) serves on our Board of Directors. Since his retirement from the active duty with the U.S. Coast Guard in April of 2001, Rear Admiral North has served as the president of North Star Maritime, Inc., a marine industry consulting firm, specializing in international and domestic maritime safety, security and environmental protection issues. While on active duty with the U.S. Coast Guard, Rear Admiral North reached the position of Assistant Commandant for Marine Safety, Security and Environmental Protection, where he directed national and international programs for commercial vessel safety, merchant mariner licensing and documentation, port safety and security and waterways management. He is a graduate of the Baltimore Polytechnic Institute, State University of New York Maritime College aI Fort Schuyler and the U.S. Army War College. Basil G. Mavroleon has served as a director of our company since July 27, 2005. Mr. Mavroleon has been employed in the shipping industry for the last 40 years. Since 1970, Mr. Mavroleon has worked at Charles R. Weber Company, Inc., one of the oldest and largest tanker brokerages and marine consultants in the United States. Mr. Mavroleon was Managing Director of Charles R. Weber Company, Inc. for twenty-five years and presently holds the position of Manager of the Projects Group. Mr. Mavroleon also serves as Managing Director of WeberSeas (Hellas) S.A., a comprehensive sale and purchase, marine projects and tanker chartering brokerage based in Piraeus, Greece. Mr. Mavroleon has served as a director of Baltic Trading Limited, a subsidiary of the Company, since its initial public offering in March 2010. Since its inception in 2003 through its liquidation in December 2005, Mr. Mavroleon served as Chairman of Azimuth Fund Management (Jersey) Limited, a hedge fund that dealt with tanker freight forward agreements and derivatives. Mr. Mavroleon is a member of the Baltic Exchange, is on the board of the Associate Membership Committee of Intertanko, a member of the Association of Ship Brokers and Agents, is on the advisory board of NAMMA (North American Maritime Ministry Association), is a board member of NAMEPA (North American Marine Environmental Protection Association), and is Chairman of the New York World Scale Committee. Mr. Mavroleon is a member of the Hellenic Chamber of Commerce, the Connecticut Maritime Association, NYMAR (New York Maritime Inc.), the Maritime Foundation Knowledge Center and serves on the board of trustees of the Maritime Aquarium, Norwalk, CT. Mr. Mavroleon was educated at Windham College, Putney, Vermont. As a result of these and other professional experiences, Mr. Mavroleon possesses knowledge and experience regarding the shipping industry, ship finance, and general business matters that strengthens the Board's collective qualifications, skills and experience. Harry A. Perrier has served as a director of the Company since August 15, 2005, and currently serves as the Chairman of the Company's Audit Committee. Mr. Perrin has served as a director of Baltic Trading Limited, a subsidiary of the Company, since its initial public offering in March 2010. Mr. Perrin is a partner in the Houston office of Vinson & Elkins, where he has been employed since August 2007. From June 2001 through November 2006, Mr. Perrin worked as an investment banker with Petrie Parkman & Co, an investment banking and financial advisory firm with offices in Houston, Texas and Denver, Colorado. In December 2006, Merrill Lynch acquired Petrie Parkman, and at that time, Mr. Perrin was hired as an investment banker at Merrill Lynch where he was employed until May 2007. Prior to joining Petrie Parkman, Mr. Perrin was a partner for ten years in the business finance and restructuring group of the Houston office of Weil Gotshal & Manges. Mr. Perrin received his Bachelor of Business Administration in Accounting with Honors from the University of Texas at Austin in 1975. He received his J.D. with High Honors from the University of Houston in 1980. Mr. Perrin is a member of the State Bar of Texas, and is a licensed Certified Public Accountant in the State of Texas. As a result of these and other professional experiences, Mr. Perrin possesses knowledge and experience regarding general business, finance and the law that strengthen the Board's collective qualifications, skills and experience. Exhibit L Incorporation Papers Delaware PAGS 1 ` liie First State: I, FiARRIET SMITH WINDSOR, SECRETARYOF STATE OF THE STATE OF DELAWARNo DO HEREBY CERTIFY THE ATTACAXD IS A TRUE :AND CORRECT COPY°oOF THE RESTATED CERTIFICATE OF-_rtATC LOGISTICS & ELECTRONICS, INC. At FILED IN THIS OFFICE ON THE TWSNTIZTA DAY OF NOVEMBER A.D. 2008, AT';ll O'CLOCK A: A: A FILED COPY OF THIS; CERTIFICATE #SAS BEEN FORWARDED TO THE CENT COUNTY RECORDER Oit' DEEDS. 43561 s2 81 ao 08Z 133756 Xou may verzfy this certifYcate on�sn� at corp.�telawara.gav/avthver.aht�i Harriet Smith wnrlsar. Secretary of State AUTHENTI CATION: 7005393 DATE: I2-O5-08 States of Lelaware Se=Fetary of State Division of Co actions t3911vered 11:00 ,AM 1112012008 FLLLL7 11:00 AN 1112012008 SRY 08s13975F.:;=. 4356192 F= _ ` RESTATED;°'> CERTIFICATE OF INCORPORATION OF A,TC LUOISTICS & ELECTRONICS, INC. 'a Delaware corporation The; undersigned, for the;-pt�tpose of restatingr, the Certificate of Incoiporatian of ATC Logistics & Electronics, Inc., aA tWaware corporation. (the "Corporation") does hereby certify their. WWII The date of filing of the Corporation's original Certificate of Incorporatian with the Secretary of State of the State wof Delaware was mkk23, 2007 and the name -tinder which it on inc?orporated was ATC E,Corp. W. 2. This Restated Certgficate of Incorporati6h has been duly adopted pursuant to Sect>GmiwN$, of the DelawarerW6 General Corporatib*�-tgw, This Resta <-:Certificate of Incorporation only restates anrl^ititegmtes and does nod further amend the, provisions of the FZ C�i piiratiort's Certificate of Inedrf oration as heretofore anigided and supplement�i and there is noo.discrepancy between those -provisions and the provisions of this Restated Certificate of IncoVoraton. "Il 3 " > The Certificate ,uf Incorporation of` theme° Corporation is hereby restated in its entirety"as follows: -{ ARTICLE i K- NAME OF CORPORATION 'I'fie name of this corporation is ATC Logistics & Electronics, Inc. ARTICLE II` REGISTERED O1F'FICE The address of the registered office of the Cotpcsration in the State of Delaware is 160 Gr etiiree..Drive, Suite 101, in the city of Dover, Comity of Kent, zip code rt9904 'and the name of its regLstdred agent at that address is National Regisiered Agents, Inc. ARTICLE III PURPOSE" The purpose of the Corporation is to engage in any lawful act or activity for which corporations maybe organized under the Delaware Cretteral Corporation Law. ARTTCLE IV AUTHORIZED CAPITALSTOCK The. Corporation shall be authorized to issue one class of stock to be designated Common Stock;:. the_;total number of shares that the Corporation' shall have authority to issue is one thousand (1,000) and each such share shall have a par vale of one cent ($.0I), ARTICLE V'`'- The duration of the Corporation shall be perpetual ARTICLE VI BOARD POWER REGARDING{BYLAWS In furtherance and not, in limitation of the powers conferred by statute,'the Board of Directors is expressly authorizedto make, repeal, after;.amend and rescind. the -bylaws of the Corporal on ARTICLE VII' MECTION OF DIRECTORS Mons of directors need avt be by written-lia of unless the bylaws of the Corporation shall saprovide. ARTICLE VZII . LIABILITY AND INDEMNIFICATION `'°`Tdtl4e fullest extent permitted by the Delaware (leneral Corporation Law, as the same exists or maybcreafter be amended (the "Delaware Law") 'a director of the i~:Orporation shall not beliable,ta the Corporation or' stockholders for monetary damages for breaclf gf fiduciary duty as a directory Corporation, shall indemnify, ir, the' manner and to -the fullest extent permitted y T by titerDelavvare Law, any person (or the estate of an yp'rson) who is or was am -party to, or is threatened "to be made a parry to, any threatened, pending er completed action, suit or proceeding, why oz not by or in the right of the Corporation, Nato whether civil, crfmi :administrative, 4 investigati gor otherwise, by reason of the fact that such: person is or was a director or officer of the C ` "ration, or is or was serving at the request of" the Corporation as a drredttir or officer of another corporation, partnership, joint venture, trust or' other enterprise. The, corporation may inde m nify; . i the manner and to the fullest extent permitted by the Delaware Law., any person (or the: estate of any person) who is or was a party to, or is threatened to be madef� a'party to, any threatened, pending or completed action, suit or proceeding, whether or not by or in the right of the Corporation, and whether civil, criminal, administrative, investigative or otherwise, by reason of the fact that such person is or was an employee or agent of the Corporation, or is or was serving at the request of the Corporation as an employee or agent of another corporation, partnership, joint venture, trust or other enterprise, Expenses incurred by any such director, afcer, employee or agent in defending any such action, suit or proceeding may be advanced by 2 tUlu Cvrpvral on prior to the fnai disposition of such acuon, suit or proceeding upon receipt of an undertaking by or on behalf of such -director, officer, employee or agent to repay such amount if it shall ultimately be determined that he or she is not entitle&to be indemnified as authorized by the Delaware Law and this Article VIIL: The Corporation may, to the fullest extent permitted by the Delaware Law, purchase ands; maiattain insurance on behalf of any such director, officer, employee or agent against any liability which may be asseried against such person: To the fullest extent permitted by the Delaware~ Law, the indemnifteation provided herein 'shall include expenses>(inoluding attorneys' few}; judgments, fines and:.amounts paid in settlement and, in the manmex,provided by the Delaware/Law, any such expenses may be paid by the Corporation in advance of#lie final disposition of such action, suit or proceeding. The indesiiii 6 tion provided heivI.W. all not be deemed to l tit t3iic:right of the Corpon to indemnify any Ether person for any stih' expenses to the fullest`extent permitted by the -Delaware Law, nor`shail'.it be deemed exclusive -off any other rights to which any person seeking.,, -indemnification from the Corporation may a enured under any agreement, vote of stockltvlders or disinte isteii-� directors, or otherwise, both as to action in such.-Person's official capacity and as to action`itr Mother capacity while holdiq such office. r Na peal or modification of the foregoing,paragraph shall adverselyr�sffect any right or protection of -a director of the Corporation existing by virtue of the foregoing paragraph at the tiirie of suck epeal or modification.-, ARTICLR M >a CORPORATE PgW-ER _ The Corporation reserves the right to amend; ealter, change or repay '`any provision contairf ice= this Certificate of Incorporation, in the ,Manner now or here prescribed by statute ;6d all rights conferred on stockholders herein,amgranted subject to this.reservation. ARTICLE X CREDITOR COMPROMISE OR. ARRANGEMENT-: r Whenever a compromise or arrangement is proposed between this corporation and its cre+drtot-'hasty class of them and/or between this Corporation and its stockholders or any class of diem, any court of equitable jurisdiction within the; State of Delaware may,.oa,the application in a suninmy way of this Corporation or of any creditor or stockholder thereof or on the appli ` "bf ' any receiver or receivers appointed for this Corporation under tlw provisions of Section 291 of Title 8 of the Delaware Code or on the application of trustees iii dissolution or of any redeiveit"or receivers ,appointed for this Corporation under the provisions' of Section 279 of Tine 8 of the Delaware Code, order a meeting of the creditors or class of cre and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on C alI the sekholders or class this Corporation. It of stochhwlders, of this Carporatlon, as the case may be, and also on IN.°WITNESS WHEREC}I~` the tmdersigned 'has" estecuted loco non behalf of the roratio n and does heresy verify p tjury, thar3his Restated Certificate of Incorporation��s�ti a act and ttiAt the fams mW herein are trud* of November 1 ;16". It s Ir this Restated,Certificate of and .under penalty of deed of rpa the Ccration and OL .!4 eph Salam novlckY� Setreiary a s: I to t fIA hy. a The undersigned, being the duly elected Secretary ©fATC Logistics & Electronics, Inc., a Delaware corporation, hereby certifies that the Bylaws to which this Certificate is attached were duly adopted by the Sale Diredot of said Corporation and are in full force -and effect as of Judy 2; 2007. rw ,.`,Toseph Salamunovich �. J. ATC LOGISTICS & ELECTRUNiCS, iNC. (a Delawam corporatioo-F BYLAWS ARTICLE I Offices 1.01 ` Registered Office..,The registered office... ofATC Logistics & Electronics, Inc. (hereinaft&-ealled the "Corporation' in the State of Delaware shall be at 160 Greentree Drive, Suite 10l Kent County, Dover, Delaware, and the name of the registered agent in charge thereof shall ba-2Joc vial Registered Agents,Jnc. Other Offices. The !ZbToration may also have an office or offices:at such other place or place, either within or without the State of Delaware, as the Board off Directors (hereinafter called the Board) may- fx+om time to timo' determine or as the business of the Corporatesmay, require. r ARTICLE a Meetings of Stocks ►k im— 2.O .' Annual Meetings. _Annual meetings of tht 'stockholders of the Corporation for the purpo ©f electing directors and for the transaction%ohsuch other proper business as may come;befor¢ such meetings may be held at such time, dateii place as the Boar fshalMetermine by resolution. 102�:'Sneciat Meetings. A special meeting of the: stockholders for the transaction of any proWbusiness may be called at any time by the Boardor by the President. u. 2.03 Place of Meetings. All meetings of the stockholders shall be held,'at sth places, within ovwithodt the State of Delaware, as may from timelo time be designated by the person or persons calling. respective meeting and specified in the respective notices or waivers of notice thereof .::. .2*04 Notice of Meetings. Except as otherwise mired by law, notice of path meeting of the stool holders whether annual or special, shall be given: -not less than 10 h6r more than 60 days before. w'date of the meeting to each stockholder of..rd entitled to vote at such meeting by delivering a typewritten or printed notice thereof to hizn personally, or by`depositing such notice.ftrlheited States mail, in a postage prepaid envelop, directed to him at his }lost office address furnished by him to the Secretary of the Corporation for such purpose or if he shall not have furnished to the Secretary his address for such purpose, then at his post office address Iast known to the Secretary, or by transmitting a notice thereof to him at such address by telegraph, cable, or wireless. Except as otherwise expressly required by law, no publication of any notice of a meeting of the stockholders shall be required. Every notice of a meeting of the stockholders sMI state the place, date and hour of the meeting, and, in the case of a special meeting, shall also state the purpose or purposes for which the meeting is called. Notice of any meeting of stockholders shall not be required to be given to any stockholder who shall have waived such notice and such notice shall be deemed waived by any stockholder who shall attend such meeting in person or by proxy, except as a stockholder who shall` attend such meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Except as otherwise expressly required by law, notice of. any .adjourned meeting of.the stockholders need aot be given if the..time and place thereof are announced at the meeting at which the adjournment is taken. 2.t35 ;:. uoram. Except in, the case of any -meeting for the election of directors summarily ordered as provided by lavw, the holders of record. of a majority in voting interest of the shares ofstock of the Corporation entitled to be voted tit, present in person or by proxy, shall constitute a quorum for the won of business at any meeting of the stockholders of the Corporatiow orpany adjournment thereof. In the absence: o.%a quorum at any 'meeftg or any adjournment thereof, a majority 1&.voting interest of the..stockholders present in' person or by proxy and entitled to vote thereat or M the absence therefrorwof all the stockholders; any officer entitled to preside at, or to act as secretary of, such meeting tray adjourn such meeting from time to time. At any such adjourned, meeting at which a quoru n is present any business may be transacted w ikh might have been transacted at the meeting -as originally called 2 Od . otin stockholder shall; `at each meeting of *',stockholders, be entitled to vote in person or by proxy each share or fractional share of the stock of the Corporation. having voting by him and registered in his name rights,on the'inaiter in question and which shall have beerf Veiii on th 'books ofihe Corporation: ;..; .(i) on the date fixed pursuant to Section 6.05 of these Bylaws as the record date -for the determination of stockholders entitW to notice of and to°`vote at such meeting, or .(ii) if no such record date shall have< so fixed, then (ay<at-the close of business on the day next preceding the day oa-r which notice of the; meeting shall be given .or (b) if notice of the meeting shall be waived, at the close of business on the day next preceding the day on which the meeting shalf%held. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of to shares entitled to vote in the election of: directors in such other corporation is held, d' 'br indirectly, by the Corporation, shall neither"tie entitled to vote nor.be,counted for quorum purposes. Persons holding stock of the Corporation in a fiduciary capacity shall be entitltdwto vote such stock. Persons whose stock is pledged shall be entitled to vote; unless in the trans*r by the pledgor on the books of the Corporation he shall have expressly e" " wered the pledgee to vote thereon, in which case only the pledgee, or his proxy, may re nt such stock and vote thereon. Stock having voting power standing of record in the names�of*two or more persons, whether fiduciaries, members of a partnership, joint tenants in common, tenants by entirety or otherwise, or with respect to which two or more persons have the same fiduciary relationship, shall be voted in accordance with the provisions of the General Corporation Law of the State of Delaware. 2 (c). Any such voting rights may be exercised by the stockholder entitled. thereto in person or by his proxy appointed by -an it strument in writi subscribed by such stockholder or by his attorney thertieunto authorized and delivered to the secretary of the meeting; provided, however, that, no proxy shall be voted -or acted upon after three years from its. date unless said proxy shall provide for a longer period IAA The attendance at any meeting of a stockholder who may theretofore havegiven a proxy shall not have the effect of revoking the same unless.he shall in writing so notify the secretary of the meeting prior to the voting of the proxy. At any meeting of the stockholders all matters, exce�as=otherwise provided-w:the Certificate oflncorporation, in these .Bylaws_ or by law, shall bee decided by the vote of a; majority in voting interest of the stockholders. sent in person or by proxy and entitled tox vvote thereat and thereon; a quorum being present. The vote at any meetlt g`i the stockholdersmot any question need not be by ballot, unless*s6-dfiftewd by the chairman: dif the meeting. On a.vote: try ballot each ballot -shall be signed by the stockl oldier voting, or by hitproxy, if there be such -proxy, and it shall state the number of shares voted. 2.07 Gist of StackhMud ers:-The Secretary of the corporation shall prepare and make, at least 10di ribcfore every meeting of stockholders, a complete list of the stockholders entitled to votes 4.::d -meeting, arranged., �i" . alphabetical order `z and showing the address of each stockholder and the number of shares registered in the=name_c f teach stockholder:. Such list shall be open to the examination of anysti ckholder, for any�rpose germane to the meeting, during ordinaryttistst`neSs hours, for a period of at least 10 days=prior tothe meeting, either at a place withi .tbea I yWhere the meeting gs ,to be held, which plar�,sk all be specified in'the notice of the meeting, o4 if n6t so specified, at the place where the meeting.is to be held. Tlieflist shall also be produced and kept at the time and place of the meeting dusting the whole time. thereof, and may be inspected by any stockholder who is present. a Z.W` Judges. If at any meeting of the stockholders a vote by written=ballot shall be taken: oh.pi y question, the chairmanof such meeting may appoint a judge or judges to act with respect to such -vote. Each judge so appointed shall first.' rst subscribe an oath fanthfixi ,to execute the duties of a: judge at such meeting with strict impartiality and according to °the best of his ability: Stich judges shall decide upon the qualification of the voters and shall report the number of shares represented at the meeting and entitled to votelf.on such question, sWLconduct and accept votes, and, when the voting is completed, shall ascertain and report the number of sharesivoted respectively for and against the question. Reports of judges shah, in writing and subscrib d4md,defivered by them to the Secretary of the Corporation. The judges need not be stockhol of the Corporation, and any officer of the. Corporation may be a judge on any questior 1. other than a vote for or against a proposal in which he shall have a water is Werest. 2.09 Aetios Without Meeting. Any action required to be taken at.. any annual or special meeting of stockholders of the Corporation, or any action that may be takers at any annual or special meeting of such stockholders, may be taken without a meeting, without_ prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall'be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by 3 3 less than unanimous written consent shall be given to those stockholders who have not consented in writing. AR'I'ICGE III Board of Directors The property, business. and: affairs of the Corporation shall be Mrs '.; Number and Term_ of Office. The number' of directors of the Corporation shall be one tip: Directors need not be: stockholders. Each_44ector of the Corporation., shall hold office until his successor shall have=been duly elected and shall qualify or until he shall resign or shall have iieenremoved in the manner -hereinafter provided:, 3.0Election of:I2irectors. the directors shall be elected annually by: the stockholders of the Corporation and the persons reoeivi rig the greatest number of votes, up to t%e number of directe tt . bo elected, shall be the directors. - 3 0 F= A% Resi¢nations. Anydii ector of the Corporation may resign at any time}by giving Written notice to the Board or to the lyecretary of the Corporation. Any such resignation shall take effect. at-Ahe time specified therein, or, if the time bif t specified, it shall take effect immediately upon its receipt; and; unless otherwise spe+cihid therein, the acceptance of such resignatrort.stialf not be necessary ig-inake it effective. 3.05 Vacancies. Except as otherwise provided.in the Certificate of Incorporation, any vacancy, in. the I�ABoard, whether because of death, resignatim.7;disqualification, an increase in the number of directors, or any other cause, may be filled by vote of the majority of the remaining directomz#Ahough less than a quorum. Each director so chosen to fill a vacancy shnll-hold office until I sir shall have been elected and shall qualify of until he shall resigie_or shall have been removed in the manner hereinafter provided. 3.06+ ' Place of Meetinn&E#c. The Board may hold any of its meetings at such place or places within or* thout the State of Delaware as the Board.may from time to timeby resolution designafe,`+~) tk shall be designated by the person or persons calling the meeting or in, the notice or a waiver -,-of notice of any such meeting. Directors may `participate in any riegulor or special meeting of'tl&Board by means of conference telephone,or.similar communications equipment pursuant :tor which all persons participating in the meeting of the Board can hear,each'other, and such participation shall constitute presence in person at such meeting. 3.07 First Mee in The Board shall meet as sown as practicable aftereach annual election of directors and notice of such first meeting shall not be required. 3.0$ Renular Meetiams. Regular meetings of the Board maybe held at such times as the Board shall from time to tune by resolution de€ermine. If any day fried for a regular meeting shall be a legal holiday at the place where the meeting is to be held then the meeting shall be held at the same hour and place on the next succeeding business day not a legal holiday. Except aLs provided by law, notice of regular meetings need not be given. 3.09 Snecisl Meetings. Special meetings of the Board shall be held whenever called by the President or a majority of the authorized number of directors, which meetings shall be held at the time and place either within or without the State of Delaware designated by the person or persons calling the meeting. Notice of any such meeting shall be provided to the directors in the manner required by applicable Iawa 3.10 Qn9MM and Mariner of Acting. Except as -otherwise provided in these Bylaws or by law,.the:presence of a majority -of the authorized.uurnber of directors shall be required to constitute a quorum for the transactiom of business at any; meeting of the Board, and "all matters shall be decided at any such meeting4 a quorum being'by the affirmative votes of a majority .of the directors present. In-ihe' absence of a quorum, a majority of directors present at any meefte may adjourn the saint from time to time until_a,quorum shall be present. Notice of any adjourned meeting need not 'be -given. The directo.-shall act only as a Board, and the individual directors shall have no power as such. 3.11 Action by Consent. Any action required or permitted to be taken at any meeting of the Boarof any committee thereof may be taken without a meeting if a w eiti d.oren consent the is signed: by all members of' Board or of such`miittee, as the case maybe, and such written consends filed with the minutei of proceedings ofine bard or committee. . . 3.12 ,_.: itemovat of Dit eetiri. Subject to. the.. provisions of the Certificate of Incorporation, any director may be removed at any time, either with or without cause, by the affirmative° void' of the stockholders having a majority of file voting power of the Corporation given at a siecial meeting of the stockholders called for ilia purpose. 3.L � Qmyensation. The directors shall receive only such compensation for their services as directors as may be allowed by resolution of ilia Board. The Board rriaymalso provide that therCorporation shall reimburse each such directof %ir, any expense incurtoed by him on account ofhis attendance at any meetings of the Board oirCoinrmittees of the Board:- Neither the payment of such compensation nor the reimbursement of such expenses shall" oe `construed to precludeµany=motor from serving the Corporation or its'%sWbsidiaries in any other capacity and receiving compensation therefor. 3 f 4 Committees. The Board may, by resolution passed by a majority:o€._the whole Board" to one or more committees, each committeelo consist of one- orf4inore of the directors of tI>is..Corporation. Any such committee, to the extent provided in the resolution of the Board and except as otherwise limited by law, shall have slid may exercise all the powers and authority of the Board in the management of the business arid:Wairs of the Corporation_, and may authorize the � of the Corporation to be affixed to all papers which may require it ` Any such committee shall keep written minutes of its meetings and report the same to the Elbaid at the next regular meeting of the Board. In the absence or disqualification of a member ofa committee, the member or members thereof present at any meeting and not disqualified from voting -whether or not he or they constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member. E ARTICLE IV Officers 4.01 Number. The officers of the Corporation -shall. be a Chief Executive Officer, a President,,one or more Vice Presidents (the number thereof and their respective titles to be determined by Board), a Secretary -and a Chief Financial- Officer. 4y0Z . ivleetiont Term. of_ tl►�ce and Qualifications: The officers of the Corporation, except such- officers as may be appointed in accordance= with Section 4.03,1 shalt be elected annually by *i Board at the first' meeting thereof held of i-'the election thereof-. F.,ach officer shall hokt office until his succesw-,shall have been duly, chosen and shall qualify.or until his resigna#ion..or. emoval in the mannerhereinafter provided. 4. "Assistants, Agents Md EEmpfayees. in addEt cti specified ition to the officers in Section 4.0 1, the Board may appoint -other assistants, agents and employees as it„may deem necessary or advisable, including one or more Assistant'�Sect?etaxies, and one or more Assistant Treaswers; each of whom shall hold -office for such pendd have such authority; -and perform such duties, as . the Board may front 'nine to time determine=; The Board may.. ,delegate to any Officerof° the"dorporation or any co fimittee of the Board the power to appoint, remove and prescribe the duties of any such assistants, agents or employ' 4 04 Removal Any officer, assistant, agent or employee of the Corporation may be removed, witli`tir without cause, `aCasty time: (i) in tiro case of an officer, assistant, agent or emplb ee appointed by the Board, only by resolution of 6e Board; and (ii) 6r -the `case of an officer, assistant; agent or employee, by any officer of the�Cofporation or commtttee-of the Board upon-vhonkQrwwhich such power of removal may be confenred by the Board. 4.05 Resignations. Any officer or assistant may'resign at any time by --giving written noticeof`f&rLssignation to the Board or the Secretary of. the.Corporation. Any such resignation shall take effectat the time specified therein, or, if the time'bt not specified, upw receipt thereof by thwBoer or the Secretary, as the case may be, and; unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. Vacancies. A vacancy in any office because of death, resignation, removal, disqualification, or other cause, may be filled for the unexpired portion of the term :the'reof in the manner prescribed in these Bylaws for regular appointtrici s or elections to such office. 4.07 The Chief Executive Officer and the I'resi nt. The Chief Executive Officer of the CO a shall have overall responsibility and authority for administering the -aft aits of the Corporation and shall supervise and control the management of the Coiporatitstt He shall exercise all of the powers customarily exercised by a chief executive officer of -any corporation by whatever name designated unless expressly Iimited by the Board of Directors.,Jhe-President, if not elected Chief Executive Officer, shall have such authority and shall perform such duties as may from time to time be conferred upon him or her by the Board of Directors or the Chief Executive Officer. If the Chief Executive Officer is disabled or otherwise absent, the President shall perform the duties of the Chief Executive Officer. The Chief Executive Officer and the President shall each have authority to sign shares of the. Corporation, any deeds; mortgages, bonds, contracts or other instruments that the Board of Directors has authorized to be signed or which.are in the ordinary course of business of the Corporation. 4.08.:.;. The Vice Presidents: Each Vice President shall have such powers and perform such duties as the Board may from -time to time prescribe; At the request of the President, or in case of the President's absence or inability to act upon the request of the Board; a,Vire President shall perform. the duties of the Presideaitt and when so actin&4hall have all the powers of, and be subject to all the restrictions upon,.Vie-fresident. 4 The Secretary. The': Sretary shall, if present, record the proceedings of all meetings.of the.Board, of the stockhoklers, and of all committees of which a secretary shall not have been appointed in one or more books provided for thsi.purpose* he shall site thetyaIl notices are duly given.in accordance withrthese Bylaws and as raequir+ed by law; he shaWbe�custodian of the seal of the Corporation and shall affix and attest the seat to all documents to bc.,executed on behalf of the Corporation under its..seal and, in general, he shall perform all the duties incident to the offrce=ofSecretary and such other duties as may from t* to time be assigned to him by the Board... 4.101he Chief Financial=(Beer. The Chief Fiincial Officer shall Have the general care and;cusy of the funds and securities of the Corporation, and shall deposit all such funds in the name o£.the Corporation in such banks, tnrst companies or other depositories;as shall be selectediy tlie`Board He shalt (rive, and give receipts for, moneys due and payable to the Corperatiori fnm any source whatsoever. He shall ;exercise general supervision over expenditures acid disbursements made by officers, agents ari employees of the Coi j ration and the prepatatitof such r+eccrrds and reports in connection .therewith as may be necessary or desirable.._,146 shall, in general, perform all other duties rtrcident to the office of:l✓hief Financial Offrcerarid,sulr other duties as from time to time may be assigned to him by the Board. 4.11 Pmaaetasstion. The compensation of the officers of the Corp6intfon shall be fixcd front tiiril& to time by the Board. None of such officer's shall be prevented from receiving such compensafion by reason of the fact that he is also a director of the Corporation. Nothing :ontained.lpmn shall preclude any officer from serving : the Corporation. or any "subsidiary corporation, in any other capacity and receiving such coiitpesation by reason of thol fact that he is also a director of the Corporation. Nothing contained herein shall precludeoarrp officer from serving the ration, or any subsidiary corporation, in any ether capacity and receiving proper compensation therefor. ARTICLE V Contracts„ Checks, drafts, Bank Accounts, Etc. 5.01 Execution of Contracts. The Board, except as in these l3ylays�°otherwise provided, znay authorize any officer or officers, agent ar agents, to enter into any contract or execute any instrument in the name of and on behalf of the Corporation, and such authority may be general or confined to specific instances; and unless so authorized by the Board or by these Bylaws, no officer, agent or employee shalt have any power or authority to bind the Corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or in any amount. 5.02 . Checks, Drafts, Etc. All checks, drafts or- other orders for payment of money, notes or. od wr. evidence of indebtedness, issued in the name: of or payable to, the Corporation, shall be signed or endorsed by such person or persons and in such manner as, from time to time, shall be determined by resolution-of'the Board. Each--such*fficer, assistant, agent or attorney shall give such.bond, if any, as the Board may require. ,z. SOOT -` 1^!` enosits, All funds of the Corporation not otherwise employed shall be deposited from timeto time to the credit oUthe= Corporation in. such banks, trust companies or other depositories-awthe Board may selec wor as may be selected by any officer or officersas or assistants,. agent or agents, or attorney or attorneys of the -Corporation to whomsuch power shall have been aiefegated by the Board , For the purpose of deposit and for the purpose , collection for the acdomw of the Corporatioz�.; be President, any Vice President or the -Chief Financial Officer (or' any'other officer or officers, assistant or assistants, agent or agents, or. attorney or attorneys:of`tt Corporation who shall from time to time lie` determined bf tlit�-Board) may endorse# assign.and deliver checks, d As and other orders foie the payment of money which are payable to the order of the Corpor#66 Sd k General and S�►eerat' Bank Accounts The Board may from time to time authorimthe,opening and keeping' of general and special bank accounts with such -banks, trust companies or other depositories as the Board may select O .' may be selected.by any officer or officers, A Ash .4 or assistants, agent or agents, or attorneymor attorneys of thi�CorPoration to whom such power shall have been delegated by the Board: `The Board may make 'such special J. ru1mMd1egvWions with respect to such bank accounts, not=inconsistent with the provisions of these Byigws, as it may deem expedient, A ARTICLE VI , Shares and Their Transfer 6.01 Certificates for Stack. Every owner of stock of the Corporation shall be entitled to have a.cettificate or certificates, to be in such form as tire- Board shall prescribe* -certifying the number and class of shares of the stock of the Corporation owned by him<.�� The certificates repre" ,:shares of such stock shall be numbered iwAbi order in which thty..siiall be issued and shah be.,sig'ned in the name of the Corporation by theillresident or a Vice President, and by the Secietky or an Assistant Secretary or by the Clifef`'Financial Officer: ar:an Assistant Tre .:,. Any of or all of the signatures on the certificates may be a facsimile. In case any officer, transfer agent or registrar who has signed, or whose facsimile signature hasbeen placed uTON any such certificate, shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, such certificate may nevertheless be issued by the Corporation with the same effect as though the person who signed such certificate, or whose facsimile°siature shall have been placed thereupon, were such officer, transfer agent or registrar at the date of issue. A record shall be kept of the respective names of the persons, firms or corporations owning the stock represented by such certificates, the number and class of shares represented by such certificates, respectively, and the respective dates thereof, and in case of cancellation, the respective dates of cancellation. Every certificate surrendered to the Corporation for exchange or transfer shall be. cancelled, and no new certificate or certificates shall be issued in exchange for any existing certificate until such existing certificate shall have been so cancelled, except in cases provided for in Section 6.04. 6.02 < Transfers of Stoat.. -Transfers of shares of stock of the Corporation shall be made only on the books of the Corporation by the registered holder thereof, or by his attorney themurrto authorized by power of attorney duly executed: ands filed with the Secretary, or with a transfer clerk or.a transfer agent appointed as provided irlmSection 6.03, and upon surrender of the certificate or, certificates for such shares properly endorsed. and the payment of all taxes thereon. The person in whose name shares of st6ek stand on the books of the Corporation sl haltbe deemed the ownerthereof for all purposes as regards the Corporation: Whenever any transfer of shares shall be. made. -for collateral security,., and not absolutely,:: such fact shall be so` expressed in the entry'of 6iriAci if, when the certificate or certificates shall be presented to the- Corporation for transfer, both the transferor and the` transferee request the. Corporation to do so. 6014J Reaulations. The Board may make such ru%s` and regulations as' it may deem expedient,,not inconsistent with these Bylaws, concertsin tl eissue, transfer and -registration of certificates for shares of the stock; oft1k Corporation, At nraX appoint, or authorize any officer or 2. officers to appoint, one or more transfer clerks or one or. move transfer agents and one or more registry anc€'snay require all certificates for stock to.;be�the signature or signatures of any of 6.04 Cost, Stolen, Aestroved and Mutilated Certificates. In any case. ofioss, theft, destruction or mutilation of any certificate of stock, another may be issued in its,place 'upon proof of sucl}" lrsW ft, destruction or mutilation and upon the giving of a bond of indemnity to the Corporatigaln such form and in such sum as the Board msy direct; provided, hovsrever, that a new certificate.may be issued without requiring any bond wren, in the judgment of the Board, it is proper so to do. 6M =..;a Flxine Date for Determination of Stockkoliders of Record. In order that the Corporation may determine the stockholders entitled to- notice of or to vote at and meeting of stockholdem.oi any adjournment thereof, or to express wnsent to corporate action in writing ...... ...:.:.:. ,. without a meeting, or entitled to receive payment of 1mi' dividend or other distribution or allotmet k fof any rights, or entitled to exercise any rights in respect of any: other change, conversion or exchange of stock or for the purpose of any tier lawful action, the Board may fix, in adva w a record date, which shall not be more than 60 for less than 10 days before the date of such meeting, nor more than 60 days prior to any other 'fiction. If in any case- involving the deterrirination of stockholders for any purpose other thati"hotice of or voting. at a meeting of stockholders or expressing consent to corporate action without a meeting the Board shall not fix such a record date, the record date for determining stockholders for such purpose shall be the close of business on the day on which the Board shall adopt the resolution relatirig'ihereto. A determination of stockholders entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of such meeting; provided, however, that the Board may fix a new record date for the adjourned meeting. 0 ARTICLE YiI Indemnification 7,01 Action, Etc.. Other Than by or in the, Right of the CoM2ration. The Corporation -shall indemnify any person who was or is a party -or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil; criminal, administrative or investigative (other than an action by or< in the right of the Corporation) by reason=of tho fit t that he is or was a:.director, officer, employee or agent of the Corporation, or is or was serving at the request of tho�Corporation as a director, officer, employee or agent of another ' corporation, partnership, joint venture, trust or_.. other enterprise, against expenses (including- Attotmeys' fees), judgments";fines and amours paid in settlement actually and reasonab* incaxed by him in connection with such action,rsuit or proceeding if he acted in good faith and. in, a manner he reasonably=believed to be in or_:nct1;_ppposed to the beat interests of the Corporatra i, an i with respect to acriminal action or=proceeding, had no reasonable cause to believe hia conduct was unlawfid,,. ,.The termination air any action, suit or; proceeding by judgment, order, settlement, convicttoj* or upon a plea of nolo contenders or its equivalent, shall not, of itself create a presumption that the person did not actin good faith and ii A MAfiner which he reasonablyvbelieved to be in or not.opposed to the bes"riterests of the Corporation and, with respect to any 'criminal action oe proceeding, that he had reasonable cause t&-believe that his conduct was unlawful. 7.0 ;Actions. Etc.q by or iiu the Right of the Corporation. The Cocpiiration shall indemnify -any person who was or is a'party or is threatened to be made a party.to any threatened, pending or completed action or suit by or in the right of theiCbrporation to procure, a judgment in its favor by reason of the fact that he is or was a d*#i?r officer, employee or agent of the CorpoiW p%~ss or was serving at the request of the Corporation as a director; officer, employee or agent.,yfranother corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably :incurred by him in connection with the defense or settlement of such action or suit if he aged in good faith and iii= a; manner he reasonably belteved to be in or not opposed to the bestlntertsts of the Corporation,' except that no indertir`uficon shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the Corporation unless and only to the extent that thelCouit of Chancery or the court in which such nctjon or suit was brought shall determine upon application that, despite the adjudication of liability b& in,;view of all the circumstances of the case, such person is fairly, and- reasonably entitled tau indemnity for such expenses which the Court%of. _Chancery or such other court shall deem proper. 7.03 Determination of Right of Indemnifition: Any indemnification .udder Section 1.01 or 7.02 (unless ordered by a court) shall be made by the Corporation only: as' authorizers in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because he has met the applicable standard o conduct set forth in Section 7.01 and 7.02. Such determination shall be made (i) by the Board by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (h) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or till) by the stockholders. 7.04 Indemnification Against Expenses of ,Sr emsful Party, Notwithstanding the other provisions of this Article, to the extent that a director; officer, employee or agent of the Corporation has been successful on%the merits or otherwise in defense of any action, suit or proceeding referred to in Section 7.01 or 7.02, or in de&%ws of any claim., issue or matter therein, he shall be.. indemnified against expenses (including'° attorneys' fees) actually arid,`reasonably incurred_ by him in connection therewith. 7.05 Prepaid Expenses:- Expenses incurred by. as officer or director *in .defending a civil or- criminal action, suitor proceeding may be paid by the:Corporation in advance -of the final disposition of such action, suit or proceeding as authoriz A,-bithe Board in the specifid case upon receipt ofanidertaking by or on•behalf of the director or officer to repay such -amount unless it shall ultimately be determined that., he is entitled to bi..Jndemnified by the. Cptpvration as authorized in this Article. Such expenses incurred by other employees and agents may be so paid upon such terms and conditions, if ani,, as the Board deems appropriate. 7M Other Rights srad Remedies. The indemnification provided by,this Article shall not be deemec exclusive of any other rights to which. those: seeking indemnification may be entitles: tinder any Bylaws, agr6erriant, vote of stockh61aers or disinterested directors or otherwise,_, both as to action in his official capacity and. as to action in another: capacity while holding such ffice, and shall continue as to a person vvli :has ceased to be a director, officer, empli Yee or agent and shall inure to the benefit of the heirs executors and adrnitiistrators of such a person. 7.0T ` France. Upon resolution passed by the:13dard, the Corporation- may purchase and maintain .insurance on behalf of any person who is-o was a director, officer, employee or agent of` the Corporation, or is or was serving at the request of the Corporatio r 'as a director, officer, employee or agent of another corporation, partnership, joint venture triist or other enterprisd``agai st any liability asserted against him and iheu and by him in anyz such capacity, or arising out ofhis status as such, whether or not the 'Corporation would have the power to indemnify, him -against such liability under the provisions of this Article. " 'f08-- .. Coastittreat Corg„orations.. For the purposes of this Article, references to "the Corporation":aiicctude all constituent corporations absorbed in a consolidation or merger as well as the' resulting or surviving corporation, so that any persoA who is or was a Ors officer, employee ,or agent of such a constituent corporation or is oi, was serving at the request of such constituent corporation as a director, officer, employee 'or agent of another corporation, partnership, joint venture, trust or other enterprise shall stand in the same position' under the provisions of this Article with respect to the resulting or surviving corporation as he would if he had served the resulting or surviving corporation in the same capacity. 7,09 Other Enterprism Fines and aervigg at Cormsration's IieanesE. For purposes of this Article, references to "other enterprises" shall include employee benefi€ plans; references t0 "fines" shall include any excise taxes assessed on a person with respect to any employee benefit plea* and references to "serving,_ at the request of the Corporation" shall =include any service as a director, officer, employee or agent of the Coi0mation'ch imposes duties on, or involves services by, such director,- officer, employee, or agent with respect to.. an employee benefit plan, its participants, or beneficiaries; and a person 'who acted in good faith and in a manner` he= reasonably believed to. be is the interest of the participants and beneficiaries of an employee benefit plan small be deemed to have acted in; a manner not opposed: to the best interests of the Corporation" as referr4 to in this Articlevn ARTICLE VTI S.@1 Wafver of,NpAces*�Whenever notice is required to be given by these Bylaws or the Certificate: of Incorporation ofi. by 'law, the person entitled:: to said notice =mayE waive such notice In writiM either before or after the time stated therein; and such waiver siiaU be deemed quivalent to notice. = 8.t -`Amendments. These Bylaws, or any of,them, may be altered; arhended or Mmaled ,anc .new Bylaws may be made, (i) by the Board] by vote of a majority of the,number of directors then in office as directorsacting at any meeph of the Board,...or.>_(h) by the slockli eiders, *.,'any annual meeting;of stockholders, without previous notice, or at any special meetingofs€ockholders, provided du"otice of such proposed amendment, modification, repeal or adopt,*q ^given in the notice .ot special meetin�,_� -f'try Bylaws made or altered by the stockholders may be altered or repealed by either the Board>o .the stockholders:- r;,_ 12 EXHIBIT "D" Describe the specific oparatlons to be perFormed at the proposed Fort Worth facility (attach adomonal streets as necessary); {mprovements�to�rthe benefft of its tenent GENCO ATCLE Which is psrt of GI:NCV&Product Lirecycle Logletlowfor the technology Industry Nk fnofude final product conftguretioh, rrvarefroufiln a td'-disirt6u�on,ireVet logistfos, test.repairand rctron refurbishment, elecs`liquidation and e-wa to recycling, -- _ A404 Opa%44MS Are9 (8quare Feet) Requirements: (a) Office (br Manufactortng (cj Werehoto.e (d) Showrocrr�lf2etail (el Other Tolal Ares (a+b+c+d+e); 9S$659 q(0 9S��i is the company ex�ailding its exigdntT local cperatlon5 nr relocating its;opera$orrs from somewhere EJsa�bb our areal +"'tiler}- 4WAV4 . —Relocation lf. relocation, where is the company currently located? Does the company plan to lease or own the Wity. in Fort-.WorW ( Lease r bWo who lithe company Is planning to lease space In Fort Worth, wh 1 ls. the tease terml 8 yearslRO 0 AeRK# it ►S�. Mll the:facility-be butt -or does tho,facility-+alresdy exist? r New JT Existing if the company is occupying an exasting facility, whaf is° the address? 5201 AiHance QatswWtSSW t 13500 Ind. PKWY if th'e:company is .constructltrg a:neaviacillty; what_is the ant(cipated Anucipated date for company to move into the fecflity; (' Replat r' Rezoning r Variances �- Requeseed Zoning: �� '" if yss; please describe: Des[gn Review Hoard 1. Currerrt.Assessed Valuation of: Land $ Total Size. of Prajeef: Page 3 of 3 Improvements$ 27;i+it7;44t3 Regarding disapifona4CIILADJY EUMM service tl.e landscaping; office or manufacturing suPplIts,1enfloriai serV CK eta.): 1. What is the iarnual amount of 'ovary, supply and service expenses? $ 2. What percentage Wili b mmitted to Fort Worth businesses?� g, 3 What percenta be committed. to. Fort Worth Certified Minority and Women Business Enterprises? 9`0 is any n.or firm recehrtna.any form of compertsatton, cammiaslon or ot8er monetary bwnsitibaaati art thsJe+N of ! "Ove obtained by the appilcant from the City. of Fort -Worth? If yes, please explain. and 1pr attach tfetaf ie> These documents must be sl,bmitted with the application, othervvise th® application will be:deemed tncomplets°and.wtlt not be_ reviewed: f'c #j $ o7b ?fwl Ott» a.) Attachat site plan of the project. U7 �t !F 6NtA r4�!'G b.) Explain why incentives are<necassary. for the tutees of thus projecta hdhid$..e:bu;flrrte'ss pro=f . otttet documentation to substantiate yourrequest., c) Desorlbe.any environmental impacts associated with this project, d.). Describe the Infrastructure Improvements (water, sewer, streets, etc.) that,will`tte cormttucted-as partof this projeci o:) Describe any direct beneflis to'WO-City of Fort Worth as e: result of thts project: f.) Attach a legal description or surveyor's certified mates and WUrtds deboriptlon, g.) Attach a copy of the most recent property tax statemant frcm the sppr`oprlsta•apptisisal distritttfor all parcels involved: in the project. h.) Attach a description of the Jobs fobs created (technician, englneer; manager, atb.) ,100* to be-, k 61 if fS I each, end wag$ rate for, each classification.. 1.) Attach a brief description of the employee benefit packages) offered (Le: health insurance, retirement, pubtic transportation assistance, day care provislogs, at.) Including portion paid by. employee.and employer respactiveiy. J.) Attach a plen.for the- utilltation of -Fort Worth Cerbfred MrWgE companies: K) Attach &Ilsting of the- applicant's Board_ ofbirectoYs; If Applicable; i.) Attach &•copy of Incorporation Papers noting all principals; parMers,.and agents i3nd:aitFp t Worth pMsertles owned by each. � Ml�iid► W+�� � t+tZ t3:�t+i:� k�. The company is re"nsible :for paying $5,oc;0 as an applIcation. fed tf the application: is vhftmNm before: the pro)" I* prtesentsd to City Council in- Executive Session, the -fee, is refunded.. Upon Ores"- flon to City Ctturtoll !n :tin �esskrn,,. $2,t700 is- non-refundoblo and is apptled .tit offset :casts Incurred by the Housirr t andraccthsertlo Dii4 opmattt-00:1*et►i, upon approval. by City inch, the balance of $30060 can Ifs credited 1:6" di to ''red ti O& psritttisr MipecOOM .fe'es,. r*platting fees;, and other costs of tieing business with that: City relates! fa` the d8velopntent;-Attiy unut, tied 'b0tar ?ors completion of the:project wilt be refunded upon request from ttw company. Printed Name. Title: Signature; wale; PagE.S of 5 Y Description of Real Property Improvements EXHIBIT "F" Landlord provided Tenant Improvements to GENCO ATC LE AT Industrial Owner 3 and AT Industrial Owner 4, LLC Alliance Business Park 13500 Independence Parkway (Gateway 19) and 13550 Independence Parkway (Gateway 5) Landlord will provide a tenant improvement allowance for the addition and/or refurbishment or construction of office and parking modifications of up to $950,000 at Gateway 5 and up to $350,000 at Gateway 19. The allowance shall be used to cover the following. • Employee entrance in the middle of the Gateway 5 building • Office expansion of approximately 10 offices at the Gateway 5 Building • Paving of approximately 100 employee parking spaces at the Gateway 5 building • Replacement of any HVAC units that are at the end of the unit's useful life • Up to a total of $100,000 of discretional tenant improvements at Gateway 5 or Gateway 19. 5201 Alliance Gateway Freeway (Gateway 31) Landlord is provng tenant a construction allowance not to exceed $570,000 for HVAC replacement work for units that exceed their useful life by 12/31/2013 and $270,558 for a lighting retrofit to replace existing lighting throughout the facility with T-5 or T-8 which will help gain operational efficiencies.